Willamette Law Online

( 2401 summaries )

Oregon Court of Appeals Updates

Breece v. Amsberry

Post-Conviction Relief: Under ORS 138.640(1), a post-conviction court is barred from entering an ambiguous judgment. Where a post-conviction court errs by entering an ambiguous judgment, the remedy is to vacate and remand the decision back to the post-conviction court.

(Filing Date: 07-27-2016)

Dayton v. Jordan

Property Law: Whether a sale of land creates an implied easement is determined on a case by case basis. The dispositive question is whether a reasonable purchaser would expect the easement under the circumstances in which he or she purchased the land.

(Filing Date: 07-27-2016)

Dept. of Human Services v. L. E.

Juvenile Law: A party asserting that an appeal is not moot must show a probable adverse consequence from the underlying judgment—a “mere possibility” of adverse consequences is not sufficient.

(Filing Date: 07-27-2016)

Dept. of Human Services v. T.L.

Juvenile Law: When a parent seeks to dismiss juvenile court jurisdiction at a time when the permanency plan is something other than reunification, the proponent or proponents of ongoing jurisdiction may invoke a presumption, based on the plan, that the jurisdictional bases continues to make it unsafe for the child to return home. If the presumption is invoked, a parent seeking dismissal bears the burden of proving, by a preponderance of the evidence, that the jurisdictional bases no longer pose a current threat of serious loss or harm to the child that is reasonably likely to be realized.

(Filing Date: 07-27-2016)

Graydog Internet, Inc. v. Giller

Corporations: Under ORS 60.952(6) the filing of a third party complaint constitutes “the filing of a proceeding.” “Proceeding” means a civil, criminal, administrative or investigatory action and a "filing" can only be attributed to the filing of the subsequent complaint containing a claim.

(Filing Date: 07-27-2016)

Northwest Public Communications Council v. Qwest

Administrative Law: A local exchange carrier “who seeks to rely on the waiver granted in the instant Order must reimburse its customers or provide credit from April 15, 1997 in situations where the newly tariffed rates, when effective, are lower than the existing tariffed rates.” Judicial estoppel is a common law equitable principle that applies to prevent a litigant who has benefitted from a position taken in an earlier judicial proceeding from taking an inconsistent position in a later proceeding.

(Filing Date: 07-27-2016)

Nulph v. Bd. of Parole and Post-Prison Supervision

Administrative Law: Under ORS 144.228(1)(c),the phrase "reasonable cause" is a delegative term requiring the Board to exercise its discretion to define the term when making a decision under ORS 144.228(1)(c).

(Filing Date: 07-27-2016)

State of Oregon v. Mansor

Criminal Procedure: Under Article I, section 9 of the Oregon Constitution, to satisfy the particularity requirement the warrant must first describe the place to be searched and the items to be seized and examined that officers can ascertain with reasonable certainty that place and those items. Second, the warrant must, to the extent reasonably possible, be drawn in such a way as to preclude seizures and searches not supported by probable cause.

(Filing Date: 07-27-2016)

State v. Green

Evidence: Under Article I, section 11 of the Oregon Constitution, it may be a violation of the right to counsel to prevent an individual from consulting with his attorney prior to taking a Intoxilyzer test if the officer is within earshot of the attorney or his receptionist.

(Filing Date: 07-27-2016)

State v. Holt

Evidence: A trail court's failure to conduct an OEC 403 balancing test may result in a Due Process violation under the Unites States Constitution.

(Filing Date: 07-27-2016)

State v. James

Evidence: A witness may not testify about the credibility of another witness, but this rule does not bar a witness from testifying that he has agreed with the State to testify truthfully in a plea or other cooperation agreement.

(Filing Date: 07-27-2016)

State v. Newsted

Criminal Procedure: When reviewing a challenge to the sufficiency of an affidavit supporting a magistrate’s issuance of a search warrant, the court asks whether “a neutral and detached magistrate could conclude (1) that there is a reason to believe that the facts stated are true; and (2) that the facts and circumstances disclosed by the affidavit are sufficient to establish probable cause to justify the search requested.” State v. Castilleja, 345 Or 264, 192 P3d 1283 (2008).

(Filing Date: 07-27-2016)

State v. Simmons

Civil Procedure: A trial court, when faced with a motion for a judgment of acquittal, is required to (1) view disputed facts in the light most favorable to the state, (2) consider all reasonable inferences of guilt and innocence arising from the undisputed facts, and (3) inquire whether “any” rational juror could find defendant guilty beyond a reasonable doubt, based on consideration of disputed and undisputed facts and the reasonable inferences arising from them.

(Filing Date: 07-27-2016)

CEVA Freight, LLC v. Employment Department

Employment Law: Under ORS 670.600(2), an entity is considered an independent contractor if it is (1) "free from direction and control over the means and manner of providing the services;" (2) "customarily engaged in an independently established business;" and (3) "responsible for obtaining other licenses or certificates necessary to provide the services."

(Filing Date: 07-20-2016)

Delta Logistics, Inc. v. Employment Dept. Tax Section

Employment Law: Under O.R.S. 657.047(1)(b), “lease" requires transfer of legal possession and use of the vehicle to the for-hire carrier, but retention of physical possession, control, and use to the lessor for the purpose of operation and maintenance of the vehicle.

(Filing Date: 07-20-2016)

Everett v. Premo

Post-Conviction Relief: Under Article I, section 11, of the Oregon Constitution and the Sixth Amendment, a petitioner who seeks to invalidate a conviction based on counsel’s performance at trial must prove (1) the lawyer failed to exercise reasonable professional skill and judgment, and (2) the petitioner suffered prejudice as a result. Prejudice occurs where the lawyer’s deficient performance “could have tended to affect the outcome of the case.”

(Filing Date: 07-20-2016)

Gilmour v. Linn County

Land Use: Under Collins v. Klamath County, a local government’s interpretation of a land use regulation that implements state law is not entitled to deference under ORS 197.829.

(Filing Date: 07-20-2016)

Market Transport, Ltd. v. Employment Dept.

Employment Law: ORS 657.047 provides an exemption from the definition of "employment" for services performed by persons who (1) lease "their equipment" to a for-hire carrier; (2) perform transportation services for the for-hire carrier; and (3) personally operates, furnishes and maintains the equipment. The driver is an employee of the person furnishing and maintaining the vehicle and not an employee of the for-hire carrier.

(Filing Date: 07-20-2016)

May Trucking Co. v. Employment Dept.

Employment Law: Under ORS 657.047, an exemption from “employment” exists (1) when a person leases “their equipment” to a for-hire carrier; (2) performs transportation services for the for-hire carrier; and (3) personally operates, furnishes and maintains the equipment.

(Filing Date: 07-20-2016)

State v. Branch

Criminal Law: Where a defendant on trial for initiating a false police report moves for a judgment of acquittal, there must be evidence that the defendant did more than lie in response to police questioning during the course of a police investigation.

(Filing Date: 07-20-2016)

State v. Grubb

Evidence: Under OEC 403, evidence may be admitted if it is relevant to an issue raised on direct examination, even if it requires inquiring into a different set of facts from those that were elicited on direct examination.

(Filing Date: 07-20-2016)

State v. Harris

Evidence: Where hearsay evidence of a material witness is admitted and the state has not made a good faith effort to secure the witness's attendance, such admission violates the defendant's rights under the Confrontation Clause of Article I, section 11, of the Oregon Constitution.

(Filing Date: 07-20-2016)

State v. Hudson

Evidence: Under OEC 103, evidentiary errors are not presumed to be prejudicial. A defendant’s conviction due to an evidentiary error cannot be reversed unless the defendant can demonstrate that he or she was actually prejudiced by that error.

(Filing Date: 07-20-2016)

State v. Sharinghousen

Criminal Procedure: Under Oregon Uniform Criminal Jury Instruction (UCrJI) 1029, inconsistencies between a witness's trial testimony and the trial testimony of another witness can support the giving of a witness-false-in-part instruction if the jury could find from those inconsistencies that the witness willfully testified falsely.

(Filing Date: 07-20-2016)

State v. Stubblefield

Criminal Procedure: Under State v. Cook, a warrantless search does not violate a defendant’s rights under Article I, section 9, of the Oregon Constitution when that defendant’s words or conduct demonstrate abandonment of the searched property.

(Filing Date: 07-20-2016)

Zach v. Chartis Claims, Inc.

Administrative Law: Since the Director of the Department of Consumer and Business Services decides both the policy within the rules and resolves vocational disputes, deference must be given to his or her interpretation of the rules.

(Filing Date: 07-20-2016)

Dept. of Human Serv. v. S.M.S

Juvenile Law: Under ORS 419B.100(1)(c), the requirements for a court to take jurisdiction of a child are satisfied if, under the totality of the circumstances at the time of the jurisdictional hearing, there is a reasonable likelihood of harm to the welfare of the child or another person.

(Filing Date: 07-07-2016)

Federal National Mortgage Association v. United States of America

Civil Procedure: ORCP 21 A(3) provides for dismissal of a plaintiff's case when there is another action pending between the same parties for the same cause. Where the plaintiff is a defendant in another pending action, ORCP 21 A(3) does not authorize dismissal of the plaintiff’s claim unless it either was required to be asserted as a counterclaim or necessarily will be adjudicated in the other action.

(Filing Date: 07-07-2016)

Kachan v. Country Preferred Insurance

Civil Procedure: Whether an insurer reasonably required an Examination Under Oath in order to disperse benefits to a policy-holder is a genuine issue of material fact sufficient to contest a motion for summary judgment.

(Filing Date: 07-07-2016)

Lawrence v. Bailey

Arbitration: In confirming an arbitration award, a court lacks authority to grant a credit for advanced payments of medical expenses without an evidentiary basis.

(Filing Date: 07-07-2016)

Mellerio v. Nooth

Post-Conviction Relief: To show inadequate assistance of counsel a petitioner “must demonstrate two things: that his trial counsel failed to exercise reasonable professional skill and judgment, and that he suffered prejudice as a result.”

(Filing Date: 07-07-2016)

State v. Clarke

Evidence: Under State v. Hampton, relevant evidence of motive is admissible to prove a defendant committed the physical element of a charged act if it makes more probable the fact that a defendant physically committed a crime than if such a motive were not established. Under State v. Brock, if the record establishes that a trial court consciously balanced the costs of admitting prior acts evidence against its benefits, there was due process balancing as required by OEC 403.

(Filing Date: 07-07-2016)

State v. Hirschman

Constitutional Law: ORS 260.715(9) is facially unconstitutional because the law criminalizes a "offer to purchase" ballots and therefore is directed at the the act of communicating itself and not at whatever harmful effects of the expression may exist.

(Filing Date: 07-07-2016)

Wells Fargo Bank, NA v. Haas

Bankruptcy Law: Summary judgment that forecloses a defendant’s interest in a manufactured dwelling is not appropriate if it is not clear if the manufactured home is a real property interest secured by the trust deed.

(Filing Date: 07-07-2016)

Bank of America, N.A. v. Payne

Property Law: Without a validly appointed trustee, there is no “trustee” for purposes of the OTDA, and therefore can be no valid trustee’s sale with the power to foreclose another person’s property interests.

(Filing Date: 06-29-2016)

Grabhorn v. Washington County

Land Use: A Land Use Board of Appeal's decision may not lack substantial evidence when the date of lawful nonconforming presence is in dispute, if there would not have been a lawful presence under either date presented by petitioner.

(Filing Date: 06-29-2016)

Hardin v. Popoff

Post-Conviction Relief: Under ORS 138.510, a petitioner is required to file for post-conviction relief within two years of entry of the judgment of conviction, unless the grounds for relief could not reasonably have been raised during that period. A claim can reasonably be raised even if the underlying principle has not previously been analyzed in the petitioner's situation.

(Filing Date: 06-29-2016)

Lee v. Am. Family Mut. Ins. Co.

Arbitration: The phrase "all issues of law and fact" in ORS 36.425(2) includes the amount of attorney fees. ORS 36.425(6) does not preclude discussion of the matter of attorney fees at trial, but rather creates an expedited process when "solely" the question of attorney fees remain in question after arbitration.

(Filing Date: 06-29-2016)

State v. Altabef

Evidence: In a prosecution for child sexual abuse, if a trial court determines that other acts evidence is relevant for a non-propensity purpose under OEC 404(3), the court is required, on a proper motion, to conduct due process balancing to weigh the probative value of the evidence against its potential to unduly prejudice the defendant before admitting it.

(Filing Date: 06-29-2016)

State v. Davis

Evidence: Under the doctrine of chances, for prior acts to be probative of intent the acts must bear something close to a point-by-point correspondence to the alleged crimes.Simply because the act has occurred more than once does not allow for any inference of a defendant's present guilt.

(Filing Date: 06-29-2016)

State v. Hudman

Criminal Law: Evidence is admissible under OEC 404(3) if it is relevant for a purpose other than to prove the person’s disposition or propensity to commit particular acts and that the person had acted in conformity with that disposition or propensity. To determine whether other-act evidence is relevant to show that a defendant engaged in the charged criminal conduct with the requisite intent, the trial court must consider the five factors set out in Johns, including whether “the physical elements of the [other] act and the [charged] act are similar.” If the answer to any of the five Johns questions is negative, then the evidence is not admissible as evidence of intent.

(Filing Date: 06-29-2016)

State v. Jensen

Criminal Law: Sexual offenses may not be expunged if another violation has occurred within 10 years, even if arising from the same event. ORS 137.225(8)(b); ORS 137.225(6).

(Filing Date: 06-29-2016)

State v. K.A.M.

Juvenile Law: A juvenile offender's age and homeless status are not relevant to determine whether a police interaction constituted a stop. A stop does not occur when, without some other show of authority, a law enforcement official asks to see identification or to search for contraband.

(Filing Date: 06-29-2016)

State v. Koontz

Criminal Law: Under State v. Garcia, when the State charges a defendant for interfering with a peace officer based on an express theory that defendant resisted the arrest of another officer, that charge is improper, and may be challenged through a motion for judgment of acquittal.

(Filing Date: 06-29-2016)

State v. Rivera-Waddle

Criminal Procedure: Conditions of a defendant's probation must be explicitly imposed by the sentencing court.

(Filing Date: 06-29-2016)

State v. Vaughn-France

Criminal Law: Under ORS 163.225(1)(b), "secretly confines the person in a place where the person is not likely to be found,” means that a defendant confines a victim in a place where it is not probable that the person will be located, either accidentally or through searching. It is a fact-specific inquiry which takes into account the circumstances of the place, the victim, and the defendant's actions.

(Filing Date: 06-29-2016)

Wingett v. Silbernagel

Civil Law: Under ORS 31.605(4), a trial court may not hold two individuals jointly liable when a jury has found them severally liable. Under ORS 471.565(2), there is no right of action against a social host who serves alcohol to a visibly intoxicated person.

(Filing Date: 06-29-2016)

Allen v. SAIF

Workers Compensation: Under ORS 656.005(7)(a)(A), in order for a claimant with an injury determined to be a “consequential condition” arising out of an earlier compensable injury to recover, that claimant must prove that the earlier compensable injury was the major contributing cause of the subsequent injury.

(Filing Date: 06-22-2016)

Baranovich v. Brockamp

Post-Conviction Relief: Under Article I, section 11, of the Oregon Constitution, prejudice means that counsel’s failure had a tendency to affect the result of the prosecution.

(Filing Date: 06-22-2016)

Brush and Brush

Family Law: An amendment to ORS 107.105(1)(f) removed separately held property acquired by inheritance from presumption of equal contributions. A domestic relations case is "pending" until a written decision is entered, even if a judge has ruled from the bench.

(Filing Date: 06-22-2016)

Cruz v. Multnomah County., et al.

Tort Law: Under ORS 30.265(6)(f), public actors are immune from liability, when acting without bad faith or malice, and relying on their plausible interpretation of laws that turn out to be unconstitutional, invalid, or inapplicable.

(Filing Date: 06-22-2016)

Department of Human Services v. T.E.B.

Juvenile Law: A parent's admission to being incarcerated and unavailable to care for their child is sufficient for asserting jurisdiction over the child.

(Filing Date: 06-22-2016)

Farmers Ins. Co. v. Aranda

Workers Compensation: Under OAR 438-006-0036, a motion made to dismiss a claim during closing arguments, rather than filed as a response to the claim or brought up during the hearing, is not a timely response.

(Filing Date: 06-22-2016)

Goodlette v. Causey

Post-Conviction Relief: Under ORS 138.590, a petitioner is entitled to suitable counsel, but a post-conviction relief court is not required to appoint substitute counsel simply because a petitioner disagrees with his or her attorney’s reasonable strategic choices.

(Filing Date: 06-22-2016)

Hooker Creek Cos., LLC v. Cent. Or. Land Dev.

Attorney Fees: A trial court does not have the authority to award attorney fees on a claim resolved by a limited judgment by a second, supplemental limited judgment.

(Filing Date: 06-22-2016)

International Longshore and Warehouse Union, Local 8 v. Port of Portland

Administrative Law: "Law of the case" doctrine does not preclude a new case from revisiting an issue determined in a previous case and potentially overruling the issue.

(Filing Date: 06-22-2016)

International Longshore and Warehouse Union, Locals 8 & 40 v. Port of Portland

Administrative Law: The Employment Relations Board does not have jurisdiction to hear complaints under the Public Employee Collective Bargaining Act unless they are based off a public employer's illegal acts.

(Filing Date: 06-22-2016)

L. E. A. v. Taylor

Civil Procedure: ORS 30.866(2) requires service of the petition and temporary stalking protection order on respondent. A judgment is void for lack of personal jurisdiction where a plaintiff fails to serve the defendant.

(Filing Date: 06-22-2016)

State v. Barber

Criminal Procedure: Mere acquiescence occurs when an individual is not given a reasonable opportunity to choose to consent or when he or she is informed that a search will occur regardless of whether consent is given.

(Filing Date: 06-22-2016)

State v. Carrasco-Montiel

Appellate Procedure: When a party having knowledge of an error or an irregularity during trial fails to call it to the court’s attention and remains silent, speculating on the result, he is deemed to have waived the error, and the denial of a motion for a new trial based upon that ground presents no reviewable question.

(Filing Date: 06-22-2016)

State v. Thomas

Evidence: OEC 703 does not permit the admission of inadmissible evidence just because it is offered through an expert witness's testimony.

(Filing Date: 06-22-2016)

Hansen v. Bd. of Comm'rs of Benton Cnty.

Appellate Procedure: Under the invited error doctrine, a party fails to preserve for appeal a claim of error when the claiming party was "actively instrumental in bringing about" the alleged error.

(Filing Date: 06-15-2016)

State v. Huddleston

Criminal Law: Under ORS 161.485(2), in order for convictions for inchoate offenses to merge, a defendant’s actions must constitute a single course of conduct aimed at the commission of the same crime.

(Filing Date: 06-15-2016)

State v. Keller

Constitutional Law: Under Article 1, section 9 of the Oregon Constitution, an out of state officer lacks the authority to stop a suspect in Oregon, as the out of state officer acts beyond his jurisdiction to exercise his lawful authority.

(Filing Date: 06-15-2016)

State v. Vage

Criminal Procedure: Under the plain error, an error is “plain” only if: (1) the error is one of law, (2) the legal error is obvious and not reasonably in dispute, and (3) the error appears on the face of the record such that the court need not go outside the record to identify the error or choose between competing inferences, and the facts constituent the error are irrefutable.

(Filing Date: 06-15-2016)

State v. Wolfgang

Criminal Law: Under ORS 131.505(4), when a defendant is found guilty of more than one criminal offense that arises out of a continuous and uninterrupted course of conduct, the sentences imposed for the resulting convictions must be concurrent.

(Filing Date: 06-15-2016)

ACN Opportunity, LLC v. Employment Dept.

Administrative Law: Under ORS 657.087(2) petitioners must establish to what extent the IBOs received compensation for in-person solicitations “in the home.” Under ORS 670.600(3) petitioners must establish that its IBOs maintained a business location that was separate from petitioner’s or was in a portion of the IBOs residence that was used primarily for business.

(Filing Date: 06-08-2016)

Dept. of Human Services v. S. S.

Family Law: The Department of Human Services must undertake reasonable efforts to make it possible for children to safely return home based on circumstances that exist prior to a permanency hearing and that period must be sufficient in length to afford a good opportunity to assess parental progress.

(Filing Date: 06-08-2016)

G. M. P. v. Patton

Family Law: To obtain a restraining order under ORS 107.718(1), a petitioner must prove by a preponderance of the evidence that: (1) the respondent abused the petitioner within 180 days preceding the filing of the petition; (2) there is an imminent danger of further abuse to petitioner; and (3) the respondent represents a credible threat to the physical safety of petitioner.

(Filing Date: 06-08-2016)

Maxfield v. Nooth

Post-Conviction Relief: The standard for determining whether counsel's deficient representation prejudiced a defendant is whether "the deficient performance could have affected the outcome of the case."

(Filing Date: 06-08-2016)

State v. F. H.

Civil Commitment: Under State v. A.D.S., an involuntary civil commitment cannot be based on apprehensions, speculations, and conjecture that an appellant cannot care for his basic needs.

(Filing Date: 06-08-2016)

State v. Garcia

Criminal Law: ORS 162.247 prohibits the State from charging a defendant with interfering with a peace officer if the State has also charged the defendant with resisting arrest based on the same conduct.

(Filing Date: 06-08-2016)

State v. Lammi

Evidence: Under ORS 419B.040(1), in the case of abuse of a child, the privileges created in ORS 40.230 to 40.255, including the psychotherapist-patient privilege, shall not be a ground for excluding evidence regarding a child’s abuse, or the cause thereof, in any judicial proceeding resulting from a report made pursuant to ORS 419B.010 to 419B.050.

(Filing Date: 06-08-2016)

State v. Newmann

Criminal Procedure: Under ORAP 5.45(1), the Court of Appeals may, at its discretion, review an unpreserved assignment of error as “an error of law apparent on the record” if: (1) the error is one of law; (2) the error is “apparent,” and (3) the error appears “on the face of the record.”

(Filing Date: 06-08-2016)

State v. Vierria

Criminal Procedure: A criminal defendant, in his right to court-appointed counsel, does not have a right to another court-appointed attorney in the absence of a legitimate complaint concerning the one already appointed. A sentence for the crime of unauthorized use of a motor vehicle (UUV) may not exceed a maximum indeterminate sentence of 60 months.

(Filing Date: 06-08-2016)

State v. Wade

Criminal Law: A second-degree disorderly conduct conviction may be reversed if a rational fact finder would find the elements beyond a reasonable doubt and there was no physical conduct by the defendant.

(Filing Date: 06-08-2016)

State v. Whitten

Criminal Procedure: There are five factors for determining whether a traffic violation should be treated as a criminal prosecution for constitutional purposes: “(1) the type of offense; (2) the potential penalties arising from a conviction; (3) the collateral consequences arising from a conviction; (4) the ‘punitive significance’ of a conviction; and (5) whether the pretrial procedures associated with a criminal proceeding are allowed.”

(Filing Date: 06-08-2016)

Wittemyer v. City of Portland

Tax Law: A "poll or head tax" has two simultaneous criteria: (1) the tax must be assessed per capita, and (2) it must be a uniform, fixed amount. Both are required, and neither alone is sufficient.

(Filing Date: 06-08-2016)

Hanson v. DMV

Administrative Law: Officers certified by the Department of Public Safety Standards and Training to request urine samples are considered certified for the purposes of ORS 813.131.

(Filing Date: 06-02-2016)

Medina v. State of Oregon

Civil Procedure: A plaintiff makes a prima facie case when the evidence the plaintiff presents could cause a rational trier of fact to infer the claim is true. A trial court may not grant summary judgment to a defendant when the plaintiff has made a prima facie case.

(Filing Date: 06-02-2016)

Nationstar Mortgage, LLC v. Peper

Trusts and Estates: Under Brandrup v. ReconTrust Co., a mortgage or deed of trust will always be attached to the promissory note that it secures. Under Niday v. GMAC Mortgage, LLC, the original lender (or any successor) of a trust deed is the beneficiary, notwithstanding what the trust deed purports to designate.

(Filing Date: 06-02-2016)

State v. Anthony

Attorney Fees: The trial court commits an error if it does not examine the criminal defendant's ability to pay court appointed attorney fees.

(Filing Date: 06-02-2016)

State v. Hermanson

Criminal Procedure: In order to obtain evidence through a warrantless entry, the state must show how long it would take to obtain a search warrant and that the police had an objectively reasonable belief that the evidence would be lost within that specified time.

(Filing Date: 06-02-2016)

State v. Hernandez-Camacho

Criminal Law: Under ORS 161.665(4), a court may not sentence a defendant to pay attorney fees unless the defendant is or may be able to pay them.

(Filing Date: 06-02-2016)

State v. Rinehart

Attorney Fees: A criminal defendant may not be required to pay attorney fees unless the defendant is or may be able to pay those fees.

(Filing Date: 06-02-2016)

State v. Rose

Criminal Law: Under Article I, section 12 of the Oregon Constitution the police must cease custodial interrogation when a criminal suspect unequivocally invokes his right against self-incrimination.

(Filing Date: 06-02-2016)

State v. Williams

Criminal Law: Under ORS 181.812(1)(d) a person is required to report as a sex offender when they move to a new residence and must report both the move and the new address. The reporting requirement is triggered when a defendant has both left the former residence and acquired a new residence.

(Filing Date: 06-02-2016)

Wal-Mart Associates, Inc. v. Lamb

Administrative Law: Upon awarding attorney fees to a claimant under OAR 438-015-0010(4), an Administrative Law Judge or Board is required to explain in its order each of the enumerated factors listed under OAR 438-015-0010(4) as they contribute to the decision to award attorney fees.

(Filing Date: 06-02-2016)

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

Family Law: Under ORS 419B.337, for an order removing a child from the parents’ custody or continuing substitute care, a court must find that reasonable efforts were made to make it possible for the child to safely return home.

(Filing Date: 05-25-2016)

Dept. of Human Services v. A. S.

Family Law: For a permanency plan to be changed, ORS 419B.476(2)(a) requires the juvenile court to determine that the Department of Human Services (DHS) made reasonable efforts to make it possible for the ward to safely return home.

(Filing Date: 05-25-2016)

Friends of Yamhill County v. Board of Commissioners

Civil Law: If a declaratory judgment proceeding is exclusively available through the writ of review process under ORS 34.020, and if it is substantially the same relief as a writ of review, the relief may be denied.

(Filing Date: 05-25-2016)

Innovative Design & Construction, LLC v. CCB

Administrative Law: When reviewing a factual finding for substantial evidence, the Court must determine whether the record, viewed as a whole, would permit a reasonable person to make the factual finding in question.

(Filing Date: 05-25-2016)

State v. Blair

Criminal Law: Under State v. DeLong, the scope of voluntary consent is determined by what a reasonable person would have understood the search to include, given the exchange between the officer and the suspect, in light of the totality of the circumstances surrounding the voluntary consent.

(Filing Date: 05-25-2016)

State v. Savage

Criminal Law: A defendant is entitled to a jury instruction on accomplice witness testimony if evidence suggests the witness testifying may have been an accomplice to the accused crime.

(Filing Date: 05-25-2016)

State v. Winn

Criminal Procedure: The scope of consent is determined on what a typical, reasonable person would have understood in the totality of the circumstances. Consent to search a closed container inside a purse is not granted by consent to search the entire purse.

(Filing Date: 05-25-2016)

State v Akerman

Sentencing: Under ORS 137.106(1), the state must provide sufficient evidence of: (1) criminal activities, (2) damages, and (3) a causal relationship between the two.

(Filing Date: 05-25-2016)

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

Family Law: Under ORS 419B.476(2)(a), the court will not change the plan from reunification to adoption unless DHS proves that it made reasonable efforts to make it possible for the child to return home safely and the parent has not made a sufficient progress for that to occur. Under ORS 419B.875(2), a parent has a statutory right to participate in the hearing including the right to testify, consult with counsel about strategic evidentiary decisions, and to complete the presentation of the evidence.

(Filing Date: 05-18-2016)

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

Family Law: The Indian Child Welfare Act does not effect judicial standards retroactively once the child taken into custody is discovered to be of Indian tribal descent.

(Filing Date: 05-18-2016)

Dept. of Human Services v. K.G.A.B.

Juvenile Law: Under ORS 419B.824(6)(c), DHS may serve a parent or guardian by service of newspaper publication in the county where the action was commenced if DHS shows a written motion and affidavit from which it can be determined that DHS was unable to accomplish service through any other method.

(Filing Date: 05-18-2016)

Frazer v. Enterprise Rent-A-Car Co. of Oregon

Administrative Law: On remand from the Court of Appeals, an agency has the authority to determine which issues were and were not preserved for review.

(Filing Date: 05-18-2016)

Putnam v. Angelozzi

Appellate Procedure: Under ORS 138.550(2), a petitioner seeking post-conviction relief may be eligible for relief based on issues not raised on direct appeal.

(Filing Date: 05-18-2016)

state v. Boss

Criminal Procedure: Under ORAP 5.45(1), the imposition of attorney fees is clear error if there is no evidence on the record regarding Defendant's ability to pay the fee, and a reviewing court may exercise its discretion to correct the clear error.

(Filing Date: 05-18-2016)

State v. Johnson

Post-Conviction Relief: A motion under ORS 138.690 for DNA testing of evidence used against a defendant in post-conviction relief proceedings does not constitute a collateral attack on the underlying conviction or validity of the proceedings. A motion that produces exculpatory evidence may or may not constitute a collateral attack on the validity of the underlying conviction or proceedings in violation of a previous plea agreement.

(Filing Date: 05-18-2016)

State v. Lopez-Silva

Attorney Fees: Under State v. Coverstone, 260 Or App 714 (2014), it is plain error for a court to order a defendant to pay court-ordered attorney fees without an assessment of the defendant's ability to pay.

(Filing Date: 05-18-2016)

Village at North Pointe Condo. Assn. v. Bloedel Constr.

Attorney Fees: When calculating attorney fees, insurance coverage issues, if not recoverable, may be separated from those incurred in litigating the claims, if recoverable.

(Filing Date: 05-18-2016)

De Los-Santos v. Si Pac Enterprises, Inc.

Workers Compensation: Under ORS 656.267, in order to prevail on a new or omitted condition claim, the claimant must prove that the new or omitted condition not only exists, but also qualifies as a condition, rather than a mere symptom.

(Filing Date: 05-11-2016)

Dept. of Human Services v. C.M.E.

Juvenile Law: The benchmark for proving a parent has made "adequate process toward reunification" is not "mere participation in services," but rather whether a parent had progressed in the standards set out in ORS 419B.498(2).

(Filing Date: 05-11-2016)

Dept. of Human Services v. K. A. H.

Juvenile Law: Under ORS 45.400(3)(b), testimony may not be given via telephone if the issues the party will testify about are so determinative of the outcome that face-to-face cross-examination is necessary.

(Filing Date: 05-11-2016)

Kerr v. Bauer

Appellate Procedure: When a case is reversed and remanded to a trial court, that trial court has the ability to make a new decision, consistent with the appellate court's decision, unless the appellate opinion directed a particular outcome.

(Filing Date: 05-11-2016)

Martini v. DMV

Administrative Law: An increased suspension under ORS 813.430(2)(b)(C) is allowed only when a person is convicted of a driving offense that includes as an element the violation of a BAC limit.

(Filing Date: 05-11-2016)

OHSU v. Oregonian Publishing Co., LLC

Civil Law: Public records may not be disclosed if they contain information about the physical, mental health, psychiatric care, or treatment of a person, when that disclosure can cause an unreasonable invasion of privacy, and the public interest does not demand disclosure.

(Filing Date: 05-11-2016)

Oregon Connections Academy v. Scio. Sch. Dist. 95C

Administrative Law: Under ORS 338.065(5)(e), an “expiring charter shall remain in effect until a new charter is negotiated” only where necessary to avoid an interruption in service.

(Filing Date: 05-11-2016)

State v. Habibullah

Criminal Law: Under ORS 136.440 the state must present evidence that connects a defendant with the commission of the offense and the evidence may not be testimony of an accomplice.

(Filing Date: 05-11-2016)

State v. Hickey

Criminal Law: Under ORS 163.205(1)(a) a person withholds necessary and adequate physical care when they withhold care that is absolutely required to meet a dependent’s basic safety and survival needs.

(Filing Date: 05-11-2016)

State v. Hooper

Criminal Procedure: A defendant's appeal will be dismissed under the fugitive dismissal rule if the defendant absconds with conscious intent to hide from or otherwise evade legal process.

(Filing Date: 05-11-2016)

State v. J. G. G.

Juvenile Law: A party to a juvenile proceeding “whose rights or duties are adversely affected by a judgment of the juvenile court may appeal therefrom.” ORS 419A.200(1). For the purposes of appeal, an appealable judgment includes a “final order adversely affecting the rights or duties of a party and made in a proceeding after judgment.” ORS 419A.205(1)(d).

(Filing Date: 05-11-2016)

State v. Jacquez

Criminal Law: Under ORS 161.635, trial courts have the authority to impose fines for Class A misdemeanors without making any findings or following any particular procedures and those decisions are not appealable unless the fine exceeds the statutory maximum.

(Filing Date: 05-11-2016)

State v. Parnell

Criminal Procedure: If the trial court does not make specific findings on all material facts, and there is evidence from which such facts could be decided in more than one way, the Court will presume that the facts were decided in a manner consistent with the trial court’s ultimate findings.

(Filing Date: 05-11-2016)

State v. Spynu

Sentencing: When applying ORS 137.717, acts are considered to be part of the same criminal episode when they are so closely linked in time, place, and circumstance that a complete account of a charge cannot be related without relating the details of another charge.

(Filing Date: 05-11-2016)

Aska and Hasson

Family Law: A stipulated marriage dissolution judgment can only be entered when both spouses agree to the agreement either in writing or on the record.

(Filing Date: 05-04-2016)

Chevalier Advertising, Inc. v. Ballista Tactical Systems, Inc.

Civil Procedure: Summary judgment is only appropriate where no genuine issues of material fact exists; a material fact is one that might affect the outcome of a case.

(Filing Date: 05-04-2016)

Cunningham v. Premo

Post-Conviction Relief: Under ORS 138.550(3), a subsequent petition for post-conviction relief may not contain successive claims which could reasonably have been made in the previous petition.

(Filing Date: 05-04-2016)

LaCasse v. Owen

Civil Procedure: When opposing a motion for summary judgment, an attorney may submit a declaration that an unidentified expert will testify to certain conclusions at a trial that raise a genuine issue of material fact.

(Filing Date: 05-04-2016)

Long v. SAIF Corporation

Workers Compensation: A Workers' Compensation Board's decision is supported by substantial evidence and reason when it is based on an expert's opinion that is supported by medical tests and opposing experts.

(Filing Date: 05-04-2016)

Rubi v. Nooth

Sentencing: Under Article 1, section 11 of the Oregon Constitution a petitioner is not prejudiced by inadequate counsel if the sentencing court would have sentenced a petitioner the same regardless of the inadequate counsel.

(Filing Date: 05-04-2016)

State v. Caro

Criminal Procedure: A trial court may not impose a court fee that is not authorized under the law.

(Filing Date: 05-04-2016)

State v. Easton

Sentencing: Under ORS 153.633(1), if a court imposes a fine in a criminal case, the first $60 (or the entire fine, if it is less than $60) is payable to the state, the statute does not authorize a court to impose an additional $60 "mandatory state amount" fine.

(Filing Date: 05-04-2016)

State v. Engle

Evidence: A suggestive identification can be combated with cross-examination and a trial court is not required to exclude the identification.

(Filing Date: 05-04-2016)

State v. Graves

Criminal Law: Under Article I, section 9 of the Oregon constitution, when a police officer stops a car, the driver is automatically “seized” for the purposes of a search, but any passengers are not; some further showing of authority towards a passenger of the vehicle is required. Encounters that could be described as inquiries or conversations with passengers during a traffic stop are not searches.

(Filing Date: 05-04-2016)

State v. King

Criminal Law: Under ORS 167.057, "explicit verbal description" means "explicit identification of sexual conduct when identification is intended to bring a graphic sexual image to the mind of the recipient."

(Filing Date: 05-04-2016)

State v. Machado

Sentencing: Under ORS 153.633(1), the first $60 of any fine imposed on a criminal defendant is to go to the state, the statute does not authorize a court to impose an additional $60 "mandatory state amount" fine.

(Filing Date: 05-04-2016)

State v. McClelland

Criminal Law: Under ORS 137.106(1)(a) and 31.710(2)(a), in the criminal context, in order to seek restitution for economic damages, the state must prove that expenses incurred for healthcare services are reasonable. The submission of a hospital bill or doctor’s invoice, without more, is insufficient to establish “reasonableness”; some additional testimony or evidence is required.

(Filing Date: 05-04-2016)

State v. Sexton

Criminal Procedure: Under Article 1, section 9, of the Oregon Constitution a passenger is seized only if there is an imposition through physical force or some showing of authority that restrains the individual's liberty. The Fourth Amendment of the United States Constitution requires a stop to be based a minimal level of objective justification for making the stop.

(Filing Date: 05-04-2016)

Vasquez v. Double Press Mfg., Inc.

Civil Law: If a plaintiff's claims are covered under Article I, section 17 of the Oregon Constitution, ORS 31.710(1) cannot reduce the amount of damages that a jury determines is proper.

(Filing Date: 05-04-2016)

Bundy v. NuStar GP, LLC

Employment Law: Under the workers compensation act, the employer may be sued by an employee for injury that results from the employers deliberate intention to injure that employee.

(Filing Date: 04-27-2016)

Horton v. OHSU

Tort Law: Where a doctor is negligent during surgery on a child and the child needs an emergency organ transplant, a parent’s voluntary choice to donate an organ may be a reasonably foreseeable result and the parent may fall within the class of plaintiffs at risk because of the close bond between family members.

(Filing Date: 04-27-2016)

Morrison v. Board of Parole

Sentencing: Under ORS 144.228(1)(b)(A) (2009), when a board is unable to make the predicate findings to set a release date, it is authorized to set the next parole consideration hearing “no less than two years, and no more than 10 years, from the date of the previous review.”

(Filing Date: 04-27-2016)

State v. Bernhardt

Criminal Law: Under ORS 163.425(1)(a) for an adult to have deviate sexual intercourse with a minor who is legally incapable of giving consent, the State need not prove the adult exerted control over the minor victim or that the minor victim did not actually consent.

(Filing Date: 04-27-2016)

State v. Guerrero

Criminal Procedure: Waiver of the right to counsel in criminal proceedings may be implied by misconduct only if (1) the defendant receives warning that repeated misconduct will force him to appear pro se, and (2) the defendant is allowed an opportunity to explain the situation in court.

(Filing Date: 04-27-2016)

Casey v. City of Portland

Administrative Law: If an employer expressly reserves an employee's right to maintain a second action or proceeding at the time of its first denial of a worker’s compensation claim, the initial denial has no preclusive effect on an employee’s subsequent claim.

(Filing Date: 04-20-2016)

Deutsche Bank Trust Company Americas v. Walmsley

Contract Law: Under ORS 73.0301, a person is entitled to enforce a judicial foreclosure on a negotiable instrument by proving only that they possess the instrument.

(Filing Date: 04-20-2016)

Jewett v. Sterling Furniture Co.

Attorney Fees: Under ORS 20.075, an attorney's characterizations of the record are not evidence to be considered when determining the proper award of attorney’s fees.

(Filing Date: 04-20-2016)

McKenzie v. A. W. Chesterson Co.

Tort Law: Under ORS 30.920(1) a manufacturer sending products in asbestos-containing packaging has a duty to warn the buyer of the risks of asbestos, even if the manufacturer does not make the packaging.

(Filing Date: 04-20-2016)

N.M.G. v. McGinnis

Civil Stalking Protective Order: To establish the basis for a stalking protective order, speech-based contacts must be threats that instill a fear of imminent and serious personal violence that is objectively likely to be followed by unlawful acts.

(Filing Date: 04-20-2016)

Richardson v. Belleque

Post-Conviction Relief: Post-conviction relief is proper when defense counsel failed to exercise reasonable professional skill and judgment in failing to rebut expert testimony at a dangerous-offender sentencing hearing.

(Filing Date: 04-20-2016)

Rogue Advocates v. Board of Commissioners of Jackson County

Land Use: A party may not ask a circuit court to disrupt the land use decisional process by asking the court to make a land use decision under the pretext of a circuit court enforcement proceeding.

(Filing Date: 04-20-2016)

State v. Beltran-Solas

Criminal Law: An accused criminal defendant, after being appointed legal counsel under Article 1, Section 11 of the Oregon Constitution, cannot be interrogated about the crime charged without the counsel’s representation.

(Filing Date: 04-20-2016)

State v. Bronson

Criminal Procedure: Under former ORS 135.747, a defendant must be brought to trial in a reasonable time, which is determined between the time the defendant is charged and when the trial begins, even if that trial ends in a mistrial.

(Filing Date: 04-20-2016)

State v. Devall

Criminal Law: I, the Court held that under ORS 166.025(1)(a) “violent, tumultuous or threatening behavior” cannot be shown by verbal threats alone.

(Filing Date: 04-20-2016)

State v. Eastep

Criminal Law: ORS 164.135, unauthorized use of a vehicle, does not require that the vehicle over which defendant exercised control was operable.

(Filing Date: 04-20-2016)

State v. Hill

Indian Law: Consistent with the Ninth Circuit’s test, a defendant bears the burden of producing evidence concerning Indian status, and the State bears the burden of proof to show that a defendant is not Indian.

(Filing Date: 04-20-2016)

State v Smith

Sentencing: Elevating a public indecency misdemeanor to a felony and imposing a life sentence for two prior sexual attempt crimes is not an unconstitutional sentence.

(Filing Date: 04-20-2016)

VFS Financing, Inc. v. Shilo Management Corporation

Civil Procedure: An expert cannot constitute a genuine dispute of material fact where their testimony would be immaterial.

(Filing Date: 04-20-2016)

State v. Padilla

Sentencing: Under Article I, section 16 of the Oregon Constitution, a sentence is dissproportinate if it would shock a reasonable person's moral sense.

(Filing Date: 04-18-2016)

Medi-Tech International Corp. v. Kwiecinski

Workers Compensation: Under ORS 656.126(1), workers injured out of state are covered “if Oregon is the place of their permanent employment and if their presence out of state is incidental to that employment.” Employees of Oregon employers who are injured while working permanently outside of Oregon are not covered.

(Filing Date: 04-13-2016)

Multnomah County Sheriff’s Office v. Edwards

Administrative Law: Under ORS 408.230 (the veterans’ preference law), a public employer’s application process for hiring and promotion decisions must utilize a coherent, stable method for giving special consideration to disabled veterans.

(Filing Date: 04-13-2016)

Padrick v. Lyons

Tort Law: Under the discovery rule for breaches of fiduciary duty, ORS 12.110(1), the statutory period begins to run from the earlier of (1) the date the plaintiff actually discovers the injury or (2) the date when the plaintiff, exercising reasonable care, should have discovered the injury, including learning facts that an inquiry would have disclosed. A plaintiff discovers an "injury" when he knew, or reasonably should have known, of the existence of three elements: (1) harm, (2) causation, and (3) tortious conduct.

(Filing Date: 04-13-2016)

State v. Couch

Post-Conviction Relief: A defendant filing a motion seeking DNA testing and the appointment of counsel under ORS 138.690 (2011) and 138.694 (2011) must include an affidavit containing a statement that he is innocent, identifying the specific evidence to be tested, and identifying a theory of defense that DNA testing would support, and additionally make a prima facie showing the testing would establish actual innocence.

(Filing Date: 04-13-2016)

State v. Kaino-Smith

Criminal Procedure: Statements made against a proprietary interest are not admissible over a hearsay objection if the interests the speaker would have been motivated to protect are "speculative and remote."

(Filing Date: 04-13-2016)

State v. Kauppi

Criminal Procedure: Under Article I, Section 9, of the Oregon Constitution and ORS 133.565, an otherwise adequately descriptive warrant is not rendered in violation of the particularity requirement because it contains a clerical error if: (1) the executing officer had personal knowledge of that error, and (2) made the "reasonable effort" of drawing upon that knowledge to, in effect, correct the clerical error.

(Filing Date: 04-13-2016)

State v. Mickow

Attorney Fees: Under ORS 151.505 and ORS 161.665, a trial court may not require a defendant to pay court-appointed attorney fees unless the court makes factual findings about whether the defendant “is or may be able to pay” the fees.

(Filing Date: 04-13-2016)

State v. Montwheeler

Criminal Procedure: Under the standard announced in Charles v. Palomo, an objection is made for preservation purposes whenever a party communicates to a trial court that he or she disagrees with the court’s actual or potential ruling. The words "I object" need not be specifically uttered, rather, the party objecting to a trial court's ruling must state its objection with enough specificity to allow the trial court to identify the alleged error for reconsideration, if warranted. Under OEC 402, it is clear error to exclude relevant evidence without a legal basis for exclusion.

(Filing Date: 04-13-2016)

State v. Oller

Civil Procedure: If a traffic stop has ended, a police officer may only detain a suspect for further investigation if the detention is supported by reasonable suspicion.

(Filing Date: 04-13-2016)

State v. Summers

Criminal Procedure: ORS 136.570 does not warrant the exclusion of witnesses from testifying as a remedy for its violation. ORS 135.865 allows the trial court to have "broad discretion in its choice of sanctions for failure to disclose names of witnesses in a criminal case."

(Filing Date: 04-13-2016)

State v. Walker

Criminal Procedure: Under the standard in State v. Holdorf, an officer has “reasonable suspicion” to initiate a stop if the officer can identify “specific and articulable facts” that a person has committed, or is about to commit a crime. The “reasonable suspicion” standard required in order to stop a citizen is less than the “probable cause” standard necessary to arrest.

(Filing Date: 04-13-2016)

TriMet v. Aizawa

Attorney Fees: Under ORCP 6, an award of reasonable value of legal services related to the prosecution or defense of an action, known as “fees on fees,” is permissible.

(Filing Date: 04-13-2016)

Dept. of Human Services v. F.B.

Civil Procedure: A case is moot when it involves a matter that no longer is a controversy between the parties.

(Filing Date: 04-06-2016)

Gozzi v. Western Culinary Institute

Civil Procedure: The Court allowed reconsideration to clarify language in their previous opinion about the assignments of error they rejected.

(Filing Date: 04-06-2016)

Guill v. M. Squared Transportation, Inc.

Workers Compensation: Under ORS 656.005(7), “truly unexplained” injuries are considered arising out of employment as a matter of law.

(Filing Date: 04-06-2016)

State v. Deslaurier

Sentencing: ORS 137.106 does not violate the Sixth Amendment of the U.S. Constitution because a restitution award is not a sentence beyond the statutory maximum and therefore a jury determination of the underlying facts is not necessary.

(Filing Date: 04-06-2016)

State v. Harryman

Criminal Law: The questioning of a suspect by the police does not inherently create a compelling circumstance that requires Miranda warnings. The trial court is not required to allow modified jury instructions when the substance of the modified instruction is not necessary or the substance is covered fully by other instructions.

(Filing Date: 04-06-2016)

State v. M.L.N.

Civil Commitment: Under ORS 426.130(1)(a), in order to civilly commit a person, the State must prove by clear and convincing evidence that the person is mentally ill.

(Filing Date: 04-06-2016)

State v. Martine

Criminal Law: The State has not met its burden of showing legally sufficient proof that physical evidence was discarded if a jury has to use impermissible speculation to agree with the State.

(Filing Date: 04-06-2016)

State v. Rosenstiel

Sentencing: ORS 161.067 requires merger of multiple guilty verdicts into a single conviction when the defendant violates "only one statutory provision" and when the conduct arises "from the same conduct or criminal episode."

(Filing Date: 04-06-2016)

State v. Smith

Criminal Procedure: Under the officer safety exception to warranties searches of Article 1, section 9 of the Oregon Constitution, the state must show that the officer had an objectively reasonable concern for safety based on facts specific to the particular person searched.

(Filing Date: 04-06-2016)

State v. T.W.

Civil Commitment: Failure to inform an allegedly mentally ill individual of the possible results of a hearing and of the individual’s right to subpoena witnesses is plain error.

(Filing Date: 04-06-2016)

Utility Reform Project v. Oregon Public Utility Commission

Administrative Law: Under ORS 757.355, recovery of administrative costs for issuing a consumer refund is not considered obtaining profit.

(Filing Date: 04-06-2016)

Walraven v. Premo

Post-Conviction Relief: Under the standard announced in Wade v. Brockamp, trial counsel's failure to object to the "natural and probable consequences" jury instruction as to a defendant's aggravated murder charge equates to constitutionally inadequate counsel.

(Filing Date: 04-06-2016)

Dept. of Human Services v. J. V.-G.

Evidence: A judgment will be affirmed despite evidentiary error if there is little likelihood that the particular error affected the verdict. To determine if there is little likelihood that the error affects an outcome the court must determine whether the improperly admitted evidence could have affected the outcome of the case.

(Filing Date: 03-30-2016)

Grant v. Coursey

Criminal Procedure: For post-conviction relief based on inadequate assistance of counsel, a petitioner must demonstrate that (1) trial counsel failed to exercise reasonable professional skill and judgment, and (2) petitioner suffered prejudice as a result.

(Filing Date: 03-30-2016)

Hughes v. Ephram

Property Law: The legislature's use of the word "enjoin" in ORS 726.330 is broad enough to include a writ of garnishment.

(Filing Date: 03-30-2016)

Johnson v. Premo

Post-Conviction Relief: Under ORS 138.530(1)(a) and Article I, section 11, of the Oregon Constitution, to prevail on a claim of ineffective assistance of counsel, a petitioner in a post-conviction relief matter must prove by a preponderance of the evidence that his or her attorney failed to exercise reasonable professional skill and judgment, and consequently the petitioner suffered prejudice.

(Filing Date: 03-30-2016)

State v. Anderson-Brown

Evidence: A Defendant bears the burden of framing the issues in a motion to suppress in a way that informs a trial court of what the defendant is asking the court to do, and that notifies the state of the contentions it must respond to. To sufficiently preserve error on appeal, a defendant must frame the issues in a way that makes the defendant’s contention sufficiently clear to the state and the trial court to give them the opportunity to understand the contention and fairly respond to it.

(Filing Date: 03-30-2016)

State v. Berg

Attorney Fees: Under ORS 151.505(3), and 161.665(4), it is plain error for a trial court to require a defendant to pay attorney fees in the absence of evidence he is able to do so. Under plain error analysis, competing inferences must be “plausible,” not speculative.

(Filing Date: 03-30-2016)

State v. Dawson

Sentencing: Under ORS 809.235(1)(b), the Sixth Amendment to the United States Constitution does not bar the use of a prior uncounseled conviction to revoke a defendant’s driving privileges where the prior conviction is not used to support the defendant’s guilt or to enhance punishment.

(Filing Date: 03-30-2016)

State v. Kindler

Criminal Procedure: Forcing defense counsel to go to conduct a spontaneous evidence suppression hearing and then to go to trial within a month unfairly prejudices the defendant.

(Filing Date: 03-30-2016)

State v. Miller

Criminal Procedure: Under Article I, section 9 of the Oregon Constitution, questioning an otherwise cooperative driver about weapons based solely on that driver’s license to carry a concealed firearm permit where there are no other circumstances indicating that the driver poses a threat to the officer, may constitute an unlawful extension of a traffic stop, and any statements obtained because of the officer’s questioning should be suppressed.

(Filing Date: 03-30-2016)

State v. Poston

Civil Procedure: “ORS 132.560 requires that a charging instrument that charges multiple crimes to allege the basis for joinder or facts that would permit the court to determine the basis for joinder.” This means that, to withstand demurrer, a charging instrument on its face should allege that the acts which resulted in separate charges occurred by the same person, “are of the same or similar character, are based on the the same act or transaction, or that two or more acts or transactions connect together or constitute parts of a common scheme or plan.”

(Filing Date: 03-30-2016)

Dept. of Human Services v. M. M.

Juvenile Law: In order for a juvenile court to take jurisdiction over a child under ORS 419B.100(1)(c), the court must prove that a the child’s current conditions and circumstances are such as to endanger the welfare of the child.

(Filing Date: 03-23-2016)

State v. Richards

Criminal Law: Under ORS 137.593(3), a trial court may not revoke a criminal defendant’s probation if the defendant has already completed a structured, intermediate probation sanction for the same conduct. However, if the defendant serves a structured, intermediate imposed for a violation of conditions of post-prison supervision, the court retains authority to revoke the defendant’s probation for that same conduct.

(Filing Date: 03-23-2016)

State v. Richardson

Criminal Law: State v. Cantwell concluded that under ORS 166.025(1)(a) (Disorderly conduct where conduct is fighting or violent, tumultuous, or threatening behavior”) the State needs to prove that the defendant “either used physical force or engaged in physical conduct that was immediately likely to produce the use of physical force.” Cantwell further provided that a conviction under that statute could not be based on the defendant’s speech but on the physical force aspect. Subsequent cases showed that incidental physical conduct, such as grabbing a shoulder, which is a “common method of gaining someone’s attention” does not fall under the physical force necessary for a conviction under this statute.

(Filing Date: 03-23-2016)

Dept. of Human Services v. B. P.

Family Law: Judgment of juvenile court was reviewable by the Court of Appeals as it was a concluding decision on jurisdiction.

(Filing Date: 03-16-2016)

Dept. of Human Services v. R. W.

Family Law: While a parent’s failure or unwillingness to participate in reunification services and sign releases necessary for referrals to those services is taken into account by the courts, it does not preclude DHS from making reasonable efforts to engage the parent for reunification with their child.

(Filing Date: 03-16-2016)

Himebaugh v. Taylor

Post-Conviction Relief: Under ORS 138.640(1) and Datt v. Hill, a post-conviction judgment to deny relief must (1) identify the claims for relief the court considered and make separate rulings on each claim; (2) declare for each claim whether the denial is based on petitioner’s failure to utilize or follow available state procedures or a failure to establish the merits of the claim; and (3) make the legal bases for denial of relief apparent.

(Filing Date: 03-16-2016)

Johnson and Johnson

Family Law: Under ORS 107.105(1)(d)(A) , transitional spousal support is typically awarded for education or training to prepare the supported spouse to enter the job market; because this type of support is awarded for a specific purpose, its duration must correspond to the timeframe of that specific purpose.

(Filing Date: 03-16-2016)

Lagunas-Garcia v. Taylor

Criminal Procedure: A post-conviction court's form judgment must comply with ORS 138.640.

(Filing Date: 03-16-2016)

Rivas v. Board of Parole

Administrative Law: Under Oregon’s Public Meetings Law, ORS 192.610-95, a “meeting” is a convening of a governing body for which a quorum is required to in order to make a decision on any matter, and a “convening” is a contemporaneous gathering.

(Filing Date: 03-16-2016)

Robinson v. Tri-County Metropolitan Transportation District of Oregon

Attorney Fees: Under ORS 742.061(3), sending a "safe harbor" letter, even if it did not include the statutory language that "the only issues are the liability of the uninsured or underinsured and the damages due the insured," satisfies the exemption.

(Filing Date: 03-16-2016)

State v. B.P.C.

Civil Commitment: Under ORS 426.130(1)(a)(C), in certain circumstances if a court determines by clear and convincing evidence that a person has a mental illness and is in need of treatment, the court may order commitment of that person.

(Filing Date: 03-16-2016)

State v. Belen

Criminal Law: Under ORS 163.405, to convict a defendant of first-degree sodomy a jury must find that the defendant had a culpable mental state when the defendant subjected the victim to forcible compulsion; failure to instruct the jury that it must find the defendant had a culpable mental state is plain error. However, when there is no evidentiary basis from which the jury could find that the defendant, in engaging in the charged conduct, subjected the victim to forcible compulsion but did not do so knowingly, the error is harmless.

(Filing Date: 03-16-2016)

State v. Eskie

Evidence: Under ORS 813.135 and 813.136, evidence of a criminal defendant's refusal to comply with a field sobriety test is inadmissible if the arresting officer fails to notify the defendant that evidence of this non-compliance is admissible in trial.

(Filing Date: 03-16-2016)

State v. Reger

Evidence: ORS 133.565(2)(c) requires that a search warrant, among other things, must state, or describe with particularity “[t]he things constituting the object of the search and authorized to be seized.”

(Filing Date: 03-16-2016)

State v. R-Robinson

Sentencing: Under OAR 213-004-0011(1), an out-of-state adult conviction may only be used to classify an offender’s criminal history where the elements of the offense would have constituted a felony or Class A misdemeanor under Oregon law.

(Filing Date: 03-16-2016)

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

Juvenile Law: A trial court may not terminate parental rights under ORS 419B.819(7) and ORS 419B.820 for a parent’s failure to appear at hearing, unless the court complies with the notice requirements of ORS 419B.820.

(Filing Date: 03-09-2016)

Dept. of Human Services v. K. V.

Family Law: Jurisdiction was warranted where the father had a history of alcohol abuse and domestic violence in situations involving the child and refused to admit the threat that mother posed to the child.

(Filing Date: 03-09-2016)

DeShaw and Nahar-DeShaw

Family Law: In a child support modification proceeding, an accountant's testimony that tax returns may be credible and reliable evidence of income that can meet the "any evidence" standard needed to support a trial court finding.

(Filing Date: 03-09-2016)

Gordon v. Rosenblum

Consumer Credit: A permanent injunction preventing the Department of Justice from taking action under the Unlawful Trade Practices Act after an investigation provides probable cause for such action is improper where the investigated party uses deceptive practices and incorrect information to collect from debtors.

(Filing Date: 03-09-2016)

Hancock v. Pioneer Asphalt, Inc.

Civil Procedure: Issue preclusion may not be applied to dismiss a claim where, in the prior action, the claim was dismissed without prejudice without being actually litigated and essential to a final decision on the merits.

(Filing Date: 03-09-2016)

Progressive Party of Oregon v. Atkins

Administrative Law: Arguing the possibility of a hypothetical administrative rule that Defendant had no plans to adopt does not make a future dispute “likely” as is required to invoke the Tanner exception (ORS 14.175) to to the mootness doctrine.

(Filing Date: 03-09-2016)

Royer v. Touch of Grey Ranch

Workers Compensation: A laborer who is injured while remodeling a building used for non-commercial activities not within the trade or business of the employer falls under the “householder” exception of ORS 656.027(2) and is a “non-subject” worker as defined under the Oregon Workers’ Compensation Act.

(Filing Date: 03-09-2016)

Smith v. Dept. of Corrections

Administrative Law: Under ORS 179.360(1)(f), only the superintendent of the Department of Corrections may appoint a chief medical officer. OAR 291-124-0016(2) is invalid. An agency policy is a rule and not an internal management directive if it has a direct effect on people who are not agency employees.

(Filing Date: 03-09-2016)

Springville Corp. v. Stoel Rives LLP

Tort Law: In a legal malpractice action, a plaintiff must establish causation, in that there must be evidence tending to prove that in the case-within-the-case, if the attorney or law firm had not been negligent, the outcome of the case would have been more favorable to the plaintiff; if no evidence of causation is shown, then summary judgment for the defendant(s) is proper.

(Filing Date: 03-09-2016)

State v. Baughman

Evidence: Under OEC 404(4), a trial court may admit evidence of a criminal defendant’s other crimes, wrongs, or acts if “(1) it is relevant under OEC 401, and (2) as required by the Due Process Clause of the Fourteenth Amendment to the United States Constitution, ‘a trial court determines whether the risk of unfair prejudice posed by the evidence outweighs its probative value under OEC 403.’” Therefore, a court must undergo a four part balancing test as required by, State v. Mayfield, 302 OR 631 (1987), to determine if the evidence is to be excluded.

(Filing Date: 03-09-2016)

State v. Brooke

Constitutional Law: Simply referencing an attorney does not necessarily constitute an unequivocal invocation of the right to counsel under Article I, section 12, of the Oregon Constitution, but a defendant’s expression of his clear desire to speak with an attorney is an unequivocal invocation of that right.

(Filing Date: 03-09-2016)

State v. Cavallaro

Criminal Procedure: Under Article I, section 12 of the Oregon Constitution and the Fifth Amendment of the U.S. Constitution, a trial court must suppress incriminating statements made by a criminal defendant after that defendant unequivocally invokes the right to counsel, unless the defendant subsequently waives the right to counsel by evincing a “willingness and a desire for a generalized discussion about the investigation” that would lead a reasonable officer to believe that Defendant had waived his constitutional right to counsel.

(Filing Date: 03-09-2016)

State v. Garcia

Criminal Procedure: Under State v. Fair, 353 OR 588 (2013), “a temporary on-the-scene seizure of a likely material witness will be constitutional if: (1) the officer reasonably believes that an offense involving danger of forcible injury to a person recently has been committed nearby; (2) the officer reasonably believes that the person has knowledge that may aid the investigation of the suspected crime; and (3) the detention is reasonably necessary to obtain or verify the identity of the person, or to obtain an account of the crime.” Furthermore, even when temporary on-the-scene detention is legal, continued presence of officers within a home requires either a search warrant or justified exception. This seizure does not create an exception for officer presence within a home without a warrant or other exception.

(Filing Date: 03-09-2016)

State v. Mazziotti

Evidence: “Where a defendant requests that the trial court exclude other acts evidence under OEC 403 because the probative value of the evidence is outweighed by the danger of unfair prejudice, it is error for the court to admit the other acts evidence without first conducting OEC 403 balancing.”

(Filing Date: 03-09-2016)

State v. Pilgrim

Criminal Procedure: A passenger’s silence as to whether objects located within a vehicle belong to him does not indicate that that passenger has unequivocally manifested an intention in giving up his possessory and privacy interest in said objects.

(Filing Date: 03-09-2016)

Bouris and Bouris

Family Law: If a trial court erroneously imputes facts regarding a party's actual income when determining spousal support or child support, then the Court of Appeals will reverse and remand.

(Filing Date: 03-02-2016)

Dept. of Human Services v. T.M.B.

Family Law: The legislative intent behind ORS 419B.923(1) is determined to “encompass a parent’s reasonable, good faith mistake as to the time or place of a dependency proceeding” including those good faith mistakes that are careless; however, the party has the burden to establish that their non-appearance was a result of excusable neglect and the juvenile court retains discretion in whether they will allow the motion.

(Filing Date: 03-02-2016)

DeRoest v. Keystone RV Co.

Workers Compensation: The Worker’s Compensation Board correctly denied employee’s aggravation claim, based on their interpretation of ORS 656.273, that an aggravation claim requires an “actual worsening” of a condition previously identified in a notice of acceptance.

(Filing Date: 03-02-2016)

Harvey v. Davis

Civil Procedure: When mailing notice of default under a land sale contract, notice via mail “shall conclusively be presumed to be correct, and the notice adequate,” unless the recipient of the notice notifies the sender by registered or certified mail that he has a claim to a longer period of time in which to cure the default, where a land sale contract contains a notice provision that provides notice of default by mail shall take effect three days after mailing.

(Filing Date: 03-02-2016)

Law v. Zemp

Remedies: A trial court may make additional orders in aid of enforcement of a charging order under ORS 67.205 (involving limited partnerships), but may not make additional orders to enforce a charging order under ORS 70.295 (involving LLCs).

(Filing Date: 03-02-2016)

State v. Austin

Sentencing: A trial court may not impose punitive sanctions in a remedial contempt proceeding.

(Filing Date: 03-02-2016)

State v. Batistia

Criminal Law: Under State v. Bailey and State v. Benning, a trial court should analyze attenuation under the totality of the circumstances rather than using the now outdated Dempster rule.

(Filing Date: 03-02-2016)

State v. Courville

Criminal Procedure: Compelling circumstances exist when the circumstances are such that an objectively reasonable person would feel compelled to answer an officer’s questions.

(Filing Date: 03-02-2016)

State v. M.A.

Criminal Law: Civil commitments require a showing that a person is dangerous to himself or others.

(Filing Date: 03-02-2016)

State v. Williams

Evidence: During a criminal trial, an audiotape of a defendant’s interrogation that contains statements by an officer that he can “read body language” and he thinks the defendant is lying may not be improper vouching testimony, particularly where the judge instructs the jury to disregard the statements when assessing the defendant’s credibility.

(Filing Date: 03-02-2016)

State v. Zavala

Evidence: In sex abuse cases, propensity evidence under OEC 404(4) must be considered in light of prejudicial effect under OEC 403.

(Filing Date: 03-02-2016)

Renton v. Webber

Family Law: In order for a court to reconsider a custody determination, a party must file a motion to modify the judgment in light of new information under ORS 107.135. That motion must show that (1) circumstances have changed substantially since the original judgment or last custody order; and (2) it is in the child's best interest to change custody from the legal custodian to the moving party.

(Filing Date: 02-24-2016)

State v. B. B. S.

Juvenile Law: If a juvenile court asserts jurisdiction over a youth based on stipulated facts, those facts must be sufficient to prove that the youth would have been convicted of a crime if that youth had been an adult.

(Filing Date: 02-24-2016)

State v. B. O.

Civil Commitment: In a civil commitment case, a trial court commits plain, reversible error if it fails to permit the individual to subpoena witnesses pursuant to ORS 426.100(1).

(Filing Date: 02-24-2016)

State v. Broome

Appellate Procedure: Under ORAP 5.45(1), the Court of Appeals may exercise its discretion to reverse a judgment ordering a defendant to pay attorney fees where the record is silent as to his ability to pay as plain error.

(Filing Date: 02-24-2016)

State v. Brown

Criminal Procedure: Though State v. Slatton allows for merger of multiple counts of crimes charged under alternative theories, ORS 161.067(2) should be taken into account to so that where multiple counts are listed, not only under alternative theory but also with different victims, those counts do not merge.

(Filing Date: 02-24-2016)

State v. Rios

Criminal Procedure: Under ORS 151.505(3) and ORS 161.665(4), the Court of Appeals may use its discretion to reverse a judgment ordering a defendant to pay court-appointed attorney fees where the trial court failed to determine the defendant’s ability to pay.

(Filing Date: 02-24-2016)

State v. Sanderlin

Sentencing: Under Article I, section 16 of the Oregon Constitution, disproportionate sentences are determined by analyzing a variety of factors, including the defendant’s diminished capacity. Consideration of medical history suggesting diminished capacity is appropriate in sentencing decisions.

(Filing Date: 02-24-2016)

Twist Architecture & Design, Inc. v. Board of Architect Examiners

Administrative Law: Oregon Board of Architect Examiners erred when it: categorized Twist’s preparation of feasibility studies as the “practice of architecture”, determined that Twist violated ORS 671.020 when it used its logos on its feasibility studies, and determined that Twist violated ORS 671.020 and OAR 806-010-0037(7) when it used the phrase “Licensed in the State of Oregon (Pending).” The Board did not err when it modified the ALJ’s findings of fact, or when it determined that Twist violated the statute by advertising Oregon architectural projects on its website. Reversed and Remanded.

(Filing Date: 02-24-2016)

Weitman Excavation, LLC v. CPM Development Corp.

Alternative Dispute Resolution: Under ORS 36.715, attorney fees may only be awarded when incurred in a judicial proceeding. Under ORS 20.190(3), in order to award an "enhanced prevailing party fee," the court must show that the opposing party acted in a manner that is not "in good faith" or "objectively reasonable."

(Filing Date: 02-24-2016)

Dept. of Human Services v. Z. E. W.

Juvenile Law: The Court will not review as-of-yet unadjudicated petitions to the juvenile court to assert jurisdiction over minors.

(Filing Date: 02-18-2016)

J.D.K. v. W.T.F.

Civil Stalking Protective Order: Under ORS 30.866, a petitioner for a civil stalking protective order must show that the petitioner has a reasonable fear for their safety as a result of at least two unwelcome contacts by the respondent.

(Filing Date: 02-18-2016)

Kelley v. State Farm Mutual Auto. Ins. Co.

Attorney Fees: Under ORS 742.061(1), insurance companies are required to to pay attorney fees to the insured unless the insurance companies actions fall within the attorney fee "safe harbor."

(Filing Date: 02-18-2016)

Lahn v. Vaisbort

Contract Law: Where a dispute over a transaction involves whether the transaction was a security or a commercial loan between private parties, the four-factor test outlined in Reves v. Ernst & Young, 494 US 56, 63-64 (1990), must weigh in favor of a security in order for the transaction to be governed by Oregon Securities Law under ORS chapter 59. The four-factor test involves analyzing: (1) the motivation for entering the transaction, (2) the plan of distribution, (3) the reasonable expectations of the investing public, and (4) whether there are any risk-reducing factors that would make application of the securities laws unnecessary.

(Filing Date: 02-18-2016)

Robertson v. Greater Albany Public School District No. 8J

Workers Compensation: Affirmed. Nacoste v. Halton Co., 275 Or App 600, ___ P3d ___ (2015).

(Filing Date: 02-18-2016)

State v. Butcher

Criminal Procedure: Under ORS 151.505(3) and ORS 161.665(4), it is plain error to require a defendant to pay attorney fees in absence of evidence that he is able to do so, and may be reversed if the amount was “substantial” in light of defendant’s circumstances.

(Filing Date: 02-18-2016)

State v. Cline

Criminal Procedure: Under ORS 151.505(3) and ORS 161.665(4), it is plain error to require a defendant to pay attorney fees in absence of evidence that he is able to do so.

(Filing Date: 02-18-2016)

State v. Housego

Attorney Fees: A trial court may not impose attorney fees when there is no evidence in the record of the imposed's ability to pay those fees.

(Filing Date: 02-18-2016)

State v. Kelly

Criminal Procedure: Notice that the State planned to introduce hearsay evidence under OEC 803(18a)(b), given prior to first trial, was held to be sufficient, despite lack of renewed notice at retrial.

(Filing Date: 02-18-2016)

State v. Pittman

Sentencing: If on reconsideration the court finds that a prior decision erroneously instructed a lower court to enter a judgment for a lesser-included offense, when the elements of that offense were not alleged in the pleadings, the court may reconsider the case and alter its instructions accordingly.

(Filing Date: 02-18-2016)

State v. Shupe

Evidence: Evidence of a license to possess or dispense marijuana in another state may be excluded under OEC 401 and OEC 403 because the evidence is irrelevant and may be confusing to a determination of a defendant’s violation of Oregon laws regarding possession and distribution of marijuana.

(Filing Date: 02-18-2016)

TriMet v. Amalgamated Transit Union Local

Civil Law: The Oregon Public Meetings Law applies to governing bodies that do not require a quorum to conduct business when that governing body “meets” to make decisions.

(Filing Date: 02-18-2016)

Windorf v. Malco

Civil Procedure: A statute of limitations defense must be raised in a responsive pleading or in a motion before filing the pleading or the defense is waived by the party attempting to assert it.

(Filing Date: 02-18-2016)

Wolf v. GMAC Mortgage, LLC

Property Law: A trustee’s sale conducted pursuant to former ORS 86.770(1) (2011) is invalid where the trustee conducting the sale is not a validly appointed trustee as defined in former ORS 86.705(8) (2011). An invalid trustee’s sale due to lack of a validly appointed trustee cannot foreclose a person’s property interests even where the person received actual notice and did not attempt to delay or stop the sale.

(Filing Date: 02-18-2016)

Johnson and Johnson

Civil Procedure: Trial court did not err in using discretion when awarding costs (ORCP 68 B) and deciding not to award an enhanced prevailing party fee (ORS 20.190) to Appellant who prevailed on contested property claim, as both provisions are discretionary. Affirmed.

(Filing Date: 02-10-2016)

Kinkel v. Persson

Post-Conviction Relief: ORS 138.550 bars subsequent petitions for post-conviction relief if the grounds on which relief is requested could have been reasonably argued in a previous petition.

(Filing Date: 02-10-2016)

Sproule v. Coursey

Post-Conviction Relief: A defendant failed to prove inadequate assistance of counsel after being restrained during trial because he did not prove that the restraint, not visible to the jury, affected the outcome of his trial.

(Filing Date: 02-10-2016)

State v. Jacobs

Evidence: For purposes of charging a defendant with tampering with physical evidence under ORS 162.295, a defendant has knowledge that an official proceeding is about to be instituted against him at the time he is placed under arrest.

(Filing Date: 02-10-2016)

State v. Radtke

Attorney Fees: The Oregon Court of Appeals may exercise its discretion under ORAP 5.45(1) to reverse a trial court's plain error that imposes court-appointed attorney fees against a convicted criminal defendant when there is no evidence on the record that the court assessed the defendant's ability to pay those fees.

(Filing Date: 02-10-2016)

State v. Unger

Criminal Procedure: A Court may review an unpreserved error as a plain error if three requirements are satisfied: (1) the error is one “of law”; (2), the error is “apparent,” that is, “the legal point is obvious, not reasonably in dispute”; and (3) the error appears “on the face of the record.” Whether a trial court erred by failing to merge guilty verdicts is a question of law, which is reviewed for errors of law, and review is bound by the trial court’s record.

(Filing Date: 02-10-2016)

State v Osborn

Criminal Procedure: Under ORS 151.505(3) and ORS 161.665(4), it is plain error to require a defendant to pay attorney fees absent any evidence he is able to do so. Under ORAP 5.45(1), a reviewing court may examine the gravity of the error, the prison term length, and the lack of financial resources of the defendant in choosing to exercise its discretion to correct the plain error of a trial court when a defendant did not adequately preserve his objection at trial.

(Filing Date: 02-05-2016)

Bank of America, NA v. Wilson

Landlord Tenant: Under former ORS 86.755(6)(b), an interest “voluntarily created” includes any property interest that a grantor voluntarily creates after granting the deed of trust, including an ownership interest.

(Filing Date: 02-03-2016)

Central Oregon Landwatch v. Deschutes County

Land Use: Under ORS 215.283(2)(c), “private parks” means space for low-intensity outdoor recreation and not space intended exclusively for private events that are commercial activity.

(Filing Date: 02-03-2016)

Dept. of Human Services v. A.W.

Family Law: To support the court taking jurisdiction over a child, DHS must present evidence that the child’s condition or circumstances expose the child to a current threat of serious loss or injury that is likely to be realized.

(Filing Date: 02-03-2016)

Hyinx Semiconductor Mfg. America v. EWEB

Contract Law: Under ORS 42.230, when interpreting the terms of a contract, the Oregon Court of Appeals looks to the explicit language of the contract terms, and construes them together as a whole as applied to the issue raised.

(Filing Date: 02-03-2016)

Salibello v. Board of Optometry

Administrative Law: If the Oregon Administrative Procedure Act provides an adequate and exclusive remedy for an individual, then there is no remedy available in a trial court under the Uniform Declaratory Judgments Act.

(Filing Date: 02-03-2016)

Stanley v. Myers

Evidence: Hearsay evidence used by a county sheriff to form an opinion on a person's fitness to retain a concealed carry license is admissible to show the state of mind of the sheriff upon making that determination.

(Filing Date: 02-03-2016)

State v. Barnes

Criminal Procedure: The relevant analysis for alleged violations of the right to a speedy trial involves two steps: (1) determine the total period of delay and calculate the delay that is attributable to the state or the delay the defendant did not request or to which he did not consent; then (2) if the delay is longer than ordinarily would be expected, determine whether the delay is reasonable by examining all the attendant circumstances.

(Filing Date: 02-03-2016)

State v. Brown

Criminal Procedure: In a criminal investigation, when a suspect makes an "equivocal request for counsel," police act within the confines of the Fifth and Fourteenth Amendments of the United States Constitution when they continue interrogation without asking clarifying questions.

(Filing Date: 02-03-2016)

State v. Dewhitt

Criminal Procedure: Under ORS 132.560(1)(b)(C), charges may be joined for trial where they are connected together because the offenses occurred in the same time and space, the investigation renders evidence for multiple charges, and material witnesses substantially overlap.

(Filing Date: 02-03-2016)

State v. Ferguson

Criminal Procedure: A trial court may err if it fails to merge two counts of felon in possession of a firearm where the crimes involve the same statutory provision, a single victim, and are not separated by sufficient time to justify separate convictions.

(Filing Date: 02-03-2016)

State v. Gonzalez-Cristin

Attorney Fees: Under ORS 151.505(3) and ORS 161.665(4), a trial court may not sentence a criminal defendant to pay attorney fees to the court-appointed attorney unless the court finds on the record that the defendant can or will be able to pay those fees.

(Filing Date: 02-03-2016)

State v. McAuliffe

Criminal Law: A rational trier of fact could find that a defendant has the requisite intent under ORS 166.220 (intending to use a firearm as a threat) based on a defendant’s verbal statements.

(Filing Date: 02-03-2016)

State v. Strouse

Criminal Procedure: A trial court may properly join a defendant’s marijuana-related and firearm-related charges where the charges are "connected together or constitute parts of a common scheme or plan" as described in ORS 132.560(1)(b)(C).

(Filing Date: 02-03-2016)

State v. Thomas

Criminal Procedure: Under Art. I Section 9, subjective perceptions of "unusual" glances between defendants may not be sufficient to uphold a warrantless search under the "officer safety" exception to the bar on the admission of evidence procured during a warrantless search.

(Filing Date: 02-03-2016)

State v. Weigel

Criminal Procedure: Article I, section 9, of the Oregon Constitution does not forbid an officer to take reasonable steps to protect himself or others 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 officers or others then present.

(Filing Date: 02-03-2016)

Wong v. Gittings

Landlord Tenant: Under ORS 105.137(7), in an FED action, an automatic default judgment of restitution does not result when a defendant files a late answer, where the answer is filed before the plaintiff requests a default or the court renders judgment in the case.

(Filing Date: 02-03-2016)

Yes on 24-367 Committee v. Deaton

Civil Law: In the defamation context, a statement expresses an opinion if it cannot reasonably be interpreted as stating actual facts.

(Filing Date: 02-03-2016)

AFSCME Council 75 v. City of Portland

Labor Law: If an unfair labor practice complaint is filed under ORS 243.672(1)(b) based on a charge that an employer has “changed the status quo” with regard to the processing of grievances, including the practice of document transmittal, then the Employment Relations Board must review whether the change is a per se mandatory subject of bargaining.

(Filing Date: 01-27-2016)

Currier v. Washman, LLC

Property Law: Plaintiff bicyclist was an implied licensee on Defendant carwash owner’s property at the time of Plaintiff's injury. The jury properly considered evidence regarding circumstances and community norms in determining injured Plaintiff’s status, and the trial court properly denied Defendant’s motion for directed verdict. Affirmed.

(Filing Date: 01-27-2016)

Dept. of Human Services v. A. A.

Juvenile Law: When changing a permanency plan for a child, a juvenile court may not take judicial notice of facts within reports prepared by DHS and the Court-Appointed Special Advocate while off the record without giving notice to the parent, along with an opportunity for the parent to respond to the judicially-noticed evidence.

(Filing Date: 01-27-2016)

Dillard v. Premo

Post-Conviction Relief: Under ORS 138.525(3), a judgment dismissing a meritless petition is not appealable. A trial court must not expressly state that a petition is meritless; the dispositive issue whether, in fact, the trial court dismissed the petition on that ground.

(Filing Date: 01-27-2016)

La Manna v. City of Cornelius

Civil Procedure: A trial court errs in granting summary judgment to a party when another party has raised genuine issues of material fact regarding the claims in question.

(Filing Date: 01-27-2016)

Spearman v. Progressive Classic Ins. Co.

Insurance Law: Under ORS 742.061(3), disputes over individual categories of damages or over some, but not all, alleged injuries are not precluded because these disputes fall under the issue of damages due to plaintiff.

(Filing Date: 01-27-2016)

State v. Downing

Criminal Procedure: Before questioning a suspect, police must give Miranda warnings if that person is in either “full custody or in circumstances that create a setting which judges would and officers should recognize to be compelling. A person has acted with extreme indifference to the value of human life when they act in “a state of mind where an individual cares little about the risk of death of a human being.” If a proper foundation is laid for it, the results of an evidence-gathering technique that is a part of the 12-step DRE protocol is independently admissible.

(Filing Date: 01-27-2016)

State v. Guzman

Evidence: Where a victim does not testify, evidence is sufficient to establish the victim suffered “substantial pain” required by ORS 163.160(1)(a) through inferences made from witness testimony, victim statements to a 9-1-1 dispatcher and photographs of the victim’s injuries.

(Filing Date: 01-27-2016)

State v. McConnell

Criminal Law: A trial court errs by denying a criminal defendant's requested special jury instruction when that instruction correctly states the law related to self-defense, and the criminal defendant had proceeded on a theory of self-defense.

(Filing Date: 01-27-2016)

State v. Moreno

Criminal Law: When appealing the denial of a motion for acquittal, a criminal defendant must prove that, based on the undisputed evidence at trial, no reasonable jury could have found, beyond a reasonable doubt, the essential elements of the charged offense.

(Filing Date: 01-27-2016)

State v. Mullens

Criminal Law: Under Article I, section 9 of the Oregon Constitution, a police officer may not exploit an otherwise lawful traffic stop in order to question a driver about drugs without reasonable suspicion to do so.

(Filing Date: 01-27-2016)

State v. Pannell

Criminal Law: The Court affirmed this case based solely on State v. Barnes, 329 Or 327, 986 P2d 1160 (1999).

(Filing Date: 01-27-2016)

State v. Swan

Criminal Law: A criminal defendant's consent to taking a breath test after the defendant's unequivocal invocation of the right to counsel does not violate Article I, section 12 of the Oregon Constitution, even where officers have previously violated the defendant's constitutional rights by asking questions after the defendant's unequivocal invocation. Consequently, the results of the consented-to breath test are not subject to the exclusionary rule.

(Filing Date: 01-27-2016)

DeLashmutt v. Parker Group Investments, LLC

Contract Law: If a term is stated explicitly in a contract, its definition is not in question. If a conflicting term is not stated explicitly in the contract, the explicit term governs.

(Filing Date: 01-21-2016)

Foust v. Nooth

Habeas Corpus: In order to state a claim for habeas corpus relief, the petitioner must allege facts sufficient to demonstrate the two elements for habeas corpus and not just legal conclusions.

(Filing Date: 01-21-2016)

Gozzi v. Western Culinary Institute, Ltd.

Arbitration: Under Rent-A-Center, West, Inc. v. Jackson, where a party does not challenge a delegation provision specifically, the challenge to the delegation provision must be determined by the arbitrator if the delegation provision requires it.

(Filing Date: 01-21-2016)

Harless and Harless

Family Law: For a monthly spousal award where there has been a substantial change in circumstances, the trial court was required to modify or terminate the support award based on maintaining the relative positions of the parties.

(Filing Date: 01-21-2016)

Magana-Marquez v. SAIF

Workers Compensation: Under ORS 656.214 and ORS 656.266, a claimant is entitled to an award of permanent disability benefits in connection with a compensable workplace injury only if the claimant shows that the claimant has a permanent impairment that is “due to” or “results from” the claimant’s compensable workplace injury. To make that showing, the claimant must, at a minimum, demonstrate a causal relationship between the compensable injury and the claimed impairment.

(Filing Date: 01-21-2016)

Pollard v. Persson

Post-Conviction Relief: Under the Post-Conviction Hearing Act, relief is available for claims actually alleged in a petition or amended petition; claims not raised in the petition or amended petition are waived unless the petitioner establishes that the claims could not reasonably have been asserted at that time.

(Filing Date: 01-21-2016)

Robbins v. Dept. of Human Services

Tort Law: ORS 12.160(1), as amended by the 2015 legislature, applies to permit the statute of limitations to toll for a minor's claims under the Oregon Tort Claims Act.

(Filing Date: 01-21-2016)

State v. Bell

Sentencing: Under ORS 137.540(2), a trial court may impose special conditions of probation that are reasonably related to the crime of conviction, as long as those conditions are not more restrictive than necessary to achieve the goals of probation.

(Filing Date: 01-21-2016)

State v. Hurita

Sentencing: A condition of probation that is not reasonably related to the trial court's goal, which is otherwise achieved by another condition of probation, is unenforceable as overbroad.

(Filing Date: 01-21-2016)

Carleton and Carleton

Family Law: Under OAR 137-050-0715(1), (2) and (4)(f), accelerated depreciation may be excluded from calculation of a party's income when determining support; when neither party presents evidence regarding what portion of depreciation expenses are accelerated, and the court points this out with opportunity to clarify, the court may properly exclude the entire amount if the support formula is properly applied.

(Filing Date: 12-30-2015)

Dept. of Human Services v. A. H.

Juvenile Law: Where the cumulative negative effects of a jurisdictional order entered on legally insufficient evidence are substantial enough, a motion to dismiss for mootness may be denied.

(Filing Date: 12-30-2015)

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

Juvenile Law: When a parent successfully challenges a portion of a jurisdictional judgment over a child, the unchallenged portion may remain valid to uphold jurisdiction.

(Filing Date: 12-30-2015)

Devin Oil Co., Inc. v. Morrow County

Land Use: Under ORS 197.830(3), a person or party adversely affected by a land use decision that is made without a public hearing has standing to appeal that decision to LUBA. A party is adversely affected by such a decision only when the allowed land use impinges upon that party’s property or personal interests.

(Filing Date: 12-30-2015)

Emrys v. Farmers Ins. Co. of Oregon

Contract Law: If two parties enter an agreement to insure a property, but identify the wrong property, an antecedent agreement to reform a contract has been met.

(Filing Date: 12-30-2015)

Greenwood Products, Inc. v. Greenwood Forest Products, Inc.

Contract Law: On Defendants Greenwood Forest Products, Inc. appeal, its seventh assignment of error regarding expert expenses was remanded to the court for an award of reasonable expert expenses.

(Filing Date: 12-30-2015)

Hamilton v. SAIF

Workers Compensation: The issue of whether a request for hearing is timely is a jurisdictional issue and must be decided by the Worker's Compensation Board as a threshold issue if presented as an issue in the original claim.

(Filing Date: 12-30-2015)

Heng-Nguyen v. Tigard-Tualatin School District

Civil Procedure: "A defendant receives actual notice under ORS 30.275(6) when (1) a communication informs the defendant of the time, place, and circumstances of the incident that gave rise to the claim that the plaintiff ultimately asserts and (2) the communication would lead a reasonable person to conclude that the plaintiff intends to assert a claim."

(Filing Date: 12-30-2015)

J.D. v. Klaptch

Civil Procedure: Whether a denial of a continuance is improper depends on the particular circumstances of the case and the reasons presented to the court at the time the request is denied.

(Filing Date: 12-30-2015)

Marquez v. Premo

Post-Conviction Relief: A denial of post-conviction relief must (1) identify the claims for relief that the court considered and make separate rulings on each claim, (2) declare, with regard to each claim, whether the denial is based on a petitioner's failure to utilize or follow available state procedures or a failure to establish the merits of the claim, and (3) make the legal bases for denial of relief apparent (which can be established through oral findings).

(Filing Date: 12-30-2015)

Merritt and Alter

Family Law: A claim that one party to dissolution overpaid child support to the other will fail without proper documentation of such overpayment.

(Filing Date: 12-30-2015)

Miller v. Board of Parole and Post-Prison Supervision

Parole and Post-Prison Supervision: The Board of Parole and Post-Prison Supervision’s authority over a parolee extends for the remainder of the parolee’s sentence unless and until the Board affirmatively discharges the parolee from parole supervision.

(Filing Date: 12-30-2015)

Portland Police Assn. v. City of Portland

Arbitration: Oregon appellate court decisions interpreting ORS 243.706(1) hold that “the public policy analysis must be directed at the award, not the [underlying] conduct”; therefore, the board is “not to substitute [its] judgment for the arbitrator’s determination of whether the public employee engaged in the conduct resulting in discipline.” As a condition of enforceability, any arbitration award that orders the reinstatement of a public employee or otherwise relieves the public employee of responsibility for misconduct shall comply with public policy requirements as clearly defined in statutes or judicial decisions including but not limited to policies respecting sexual harassment or sexual misconduct, unjustified and egregious use of physical or deadly force and serious criminal misconduct, related to work.

(Filing Date: 12-30-2015)

Qwest Corp. v. City of Portland

Municipal Law: Under ORS 221.515(1), in order to qualify as a privilege tax, a municipality must tax a telecommunications carrier that actually uses municipal rights-of-way in order to deliver services.

(Filing Date: 12-30-2015)

Rivas-Valles v. Board of Parole

Parole and Post-Prison Supervision: The 60-day deadline set forth in ORS 144.335(4) is only for the filing of a petition for review and not for the service of said petition given that the language of the statute only explicitly refers to the petition in regards to the deadline.

(Filing Date: 12-30-2015)

Sedgwick Claims Management Services v. Norwood

Employment Law: Employee’s injuries sustained while taking a document to the post office for Employer do not fall under the exception to worker’s compensation compensability for recreational or social activities “primarily for the worker’s personal pleasure.”

(Filing Date: 12-30-2015)

SIF Energy, LLC v. Dept. of Energy

Administrative Law: ORS 469.215(4) required the Department of Energy to certify up to 110% of the actual costs of an action qualifying for a business energy tax credit. The Oregon legislature spoke clearly on the matter and did not leave room for agency interpretation otherwise.

(Filing Date: 12-30-2015)

State v. Daly

Civil Law: "The appropriate time to challenge the existence of the conditions precedent to the issuance of the citation is in a pretrial motion aimed at the efficacy of the charging instrument."

(Filing Date: 12-30-2015)

State v. Fetzer

Appellate Procedure: When a party fails to object to testimony at trial, the argument may not be preserved on appeal, even where the party successfully moved to exclude the substantive evidence upon which the testimony is based.

(Filing Date: 12-30-2015)

State v. Gaines

Civil Procedure: When multiple theories of criminal liability are presented by the state, the trial court must give a jury concurrence instruction, requiring at least 10 jurors to agree on the theory of liability before a defendant can be convicted.

(Filing Date: 12-30-2015)

State v. Gallo

Parole and Post-Prison Supervision: Under ORS 137.540(2), special conditions of probation are allowed, but cannot be more restrictive than necessary to achieve the goals of probation. A ban on the internet is reasonable for a defendant convicted of sexual abuse after posing as a teenager on the internet and luring an underage girl to a park where he sexually abused her.

(Filing Date: 12-30-2015)

State v. Inman

Evidence: In general, a detective's testimony that witness statements remained consistent between interviews is not improper vouching testimony, where the detective is not speculating on the truthfulness of the witness statements.

(Filing Date: 12-30-2015)

State v. Jones

Criminal Procedure: Under Article I, section 9 of the Oregon Constitution, discovery of an outstanding warrant does not cure an unlawful police stop. Courts must consider three factors to determine whether the evidence obtained from the unlawful stop was sufficiently attenuated from the stop: “(1) the temporal proximity between unlawful police conduct and the discovery of the challenged evidence; (2) the presence of intervening circumstances; and (3) particularly, the purpose and flagrancy of the official misconduct.”

(Filing Date: 12-30-2015)

State v. Jones

Evidence: Evidence of a nonconsensual warrantless search of a defendant's pocket and the subsequent search of a cigarette pack found in the pocket that did not fall under an exception to Article I, section 9, of the Oregon Constitution should have been suppressed.

(Filing Date: 12-30-2015)

State v. Juarez-Hernandez

Criminal Procedure: Trial court committed plain error in requiring Defendant to pay attorney fees without first considering Defendant’s ability to pay.

(Filing Date: 12-30-2015)

State v. L. M. W.

Juvenile Law: Juvenile court had the authority to either amend or dismiss youth’s delinquency petition.

(Filing Date: 12-30-2015)

State v. T.Q.N.

Juvenile Law: Juvenile court had the authority under ORS 419C.261 to rule on youth’s motion for conditional postponement.

(Filing Date: 12-30-2015)

State v. Taylor

Evidence: The Confrontation Clause of Article I, section 11, requires the court to allow a defendant to cross-examine a complaining witness about past accusations: (1) when the witness has recanted the accusations; (2) when the defendant demonstrates that those accusations were false; or (3) there is some evidence that the victim has made prior accusations that were false, unless the probative value of the evidence is substantially outweighed by the risk of prejudice, confusion, embarrassment or delay. “A trial court has authority to preclude [cross-examination based on the third category] when it reasonably determines that exploration of the previous incident would essentially require an unhelpful trial within a trial.”

(Filing Date: 12-30-2015)

State v. Thompson

Criminal Law: When an error is unpreserved, a court will address it only if (1) the error is one “of law,” (2) the point of law is “apparent,” and (3) the error appears “on the face of the record.” If the state seeks to hold a defendant liable either as the principal or as an aider and abettor and if a party requests an appropriate instruction, the trial court should instruct the jury that at least 10 jurors must agree on each legislatively defined element necessary to find the defendant liable under one theory or the other

(Filing Date: 12-30-2015)

State v. Williams

Criminal Law: Under ORS 162.285(1)(a), tampering with a witness, at the time of an offender’s knowing or intended inducement of a potential witness, an offender’s statement’s must reflect, either directly or by fair inference, that the offender reasonably and specifically believes that the victim will be called to testify at an official proceeding.

(Filing Date: 12-30-2015)

State v. Wixom

Family Law: DHS records are confidential and, when unrelated to the issue in question, are not subject to in camera review.

(Filing Date: 12-30-2015)

Tomlinson v. Metropolitan Pediatrics, LLC

Tort Law: Parents of a child medical care providers failed to diagnose with a genetic condition may have a legally cognizable claim of negligence against the providers, where the parents conceived another child with the same genetic condition as the first, because providers failed to give due care to the parents' legally protected interest in making an informed reproductive decision.

(Filing Date: 12-30-2015)

Vector Marketing Corp. v. Employment Dept.

Employment Law: Incentive payments for the number of demonstrations performed by Vector’s salespeople are not “commissions” and are therefore not exempt from unemployment insurance tax.

(Filing Date: 12-30-2015)

Washington County v. Querbach

Civil Procedure: In condemnation proceedings, ORS chapter 35 governs over statutory filing requirements listed in ORCP 9 or 17, so that an Offer of Compromise that is unsigned and unfiled when the county makes it, is considered “effective to sever [a] defendant’s entitlement to attorney fees and costs under ORS 35.300(4).”

(Filing Date: 12-30-2015)

Hutchings v. Amerigas Propane

Workers Compensation: Under ORS 656.005(25)(c), a worker’s preexisting condition makes him “susceptible” to injury if the condition increases the likelihood that the affected body part will be injured by some other action or process but does not actively contribute to damaging the body part.

(Filing Date: 12-23-2015)

Nacoste v. Halton Co.

Workers Compensation: ORS 656.273 does not apply to consequential conditions because those conditions are new medical conditions and distinct from the underlying condition.

(Filing Date: 12-23-2015)

State v. Corbin

Evidence: Any error by a trial court if a party does not request a Leistiko instruction and the trial court fails to provide one is not a plain error. Moreover, a trial court need not follow the precise steps of the Mayfield analysis, the court still meets the requirements of Mayfield so long as the record establishes that the trial court considered the elements outlined in Mayfield.

(Filing Date: 12-23-2015)

State v. Dylla

Attorney Fees: Court-appointed attorney fees are properly imposed against a defendant if the court finds on the record that the defendant's employment history, prospects for future employment, education level, ability to meet financial obligations, fee amount, and short jail sentence support a reasonable inference that defendant can or will be able to pay off the fee.

(Filing Date: 12-23-2015)

State v. Gasche

Sentencing: Under OAR 213-012-0020(2)(a)(B), the "shift-to-I" rule applies only when consecutive sentences are imposed for crimes that arise from a single criminal episode.

(Filing Date: 12-23-2015)

State v. Martinez

Criminal Procedure: A trial court must make specific findings on the record that reasonable suspicion particular to the suspect existed when denying a criminal defendant's motion to suppress evidence that may have been gained after an unlawful seizure.

(Filing Date: 12-23-2015)

State v. Perryman

Constitutional Law: Under Article I, section 9, of the Oregon Constitution and the Fourth Amendment of the United States Constitution, a warrantless, nonconsensual blood draw is valid under the exigent circumstances exception where the officer had probable cause to believe the defendant was intoxicated, a warrant could not have been obtained significantly faster than the process used under the circumstances, and, under the U.S. Constitution, the procedures used to extract the sample were reasonable.

(Filing Date: 12-23-2015)

Washington Fed. Savings and Loan v. Cheung

Evidence: Under OEC 408, evidence of settlement communications is inadmissible if used to prove or show liability of a claim or its amount.

(Filing Date: 12-23-2015)

Cascade Kelly Holdings, LLC v. Dept. of Energy

Administrative Law: Plaintiff’s claims for final certification for energy tax credits was moot because the deadline to issue final certification passed while the case was on appeal, and attorney fees were improperly awarded to Plaintiff because ORS 182.090 applies only to attorney fees in civil proceedings brought outside of the APA to which an agency is a party.

(Filing Date: 12-16-2015)

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

Family Law: Without discussing the facts underlying the appeal, the Court affirmed the termination of Mother and Father’s parental rights based on ORS 419B.504, by reason of conduct or condition seriously detrimental to the child.

(Filing Date: 12-16-2015)

Fort v. Persson

Habeas Corpus: A dismissal without prejudice cannot give rise to claim preclusion.

(Filing Date: 12-16-2015)

Hill v. Coursey

Evidence: A court-appointed attorney is not constitutionally inadequate when the attorney fails to object to testimony of an out-of-court statement detailing an opinion about the credibility of another witness.

(Filing Date: 12-16-2015)

Hughes v. Ephrem

Property Law: When assessing a defense to an action for forcible entry and detainer predicated on a quitclaim transfer of the property to another party in a life estate, the trial court must make factual findings regarding the intent of the parties at the time of the transfer.

(Filing Date: 12-16-2015)

Labor Ready v. Mogensen

Workers Compensation: While ORS 656.262(7)(a) and ORS 656.267 require "notice of new medical conditions, they do not require notice of diagnoses.” Moreover, “a particular diagnosis is not required to support the compensability of a work-related condition.”

(Filing Date: 12-16-2015)

Southard and Larkins

Family Law: In custody proceedings, custody of a child may be granted to a primary caretaker who is a stepparent of a child; a primary caretaker seeking custody of a child may overcome the presumption that a biological parent acts in the best interest of a child if the caretaker may show that the child will face a detriment if removed from the primary caretaker's custody.

(Filing Date: 12-16-2015)

State v. Monroe

Criminal Law: Revoking probation based on one violation is not an abuse of discretion if the condition of probation is "zero tolerance/no structured sanctions."

(Filing Date: 12-16-2015)

State v. Oliver

Evidence: Under OEC 404(4) as construed by State v. Williams, 357 Or 1 (2015), evidence of other acts by a defendant may be admissible if the evidence is relevant under OEC 401 and its probative value outweighs the danger of unfair prejudice as described in OEC 403.

(Filing Date: 12-16-2015)

State v. Perez

Appellate Procedure: When a defendant invites an error, such as by agreeing to it before the court has made its final decision, they lose the right to challenge that error on appeal through plain error review.

(Filing Date: 12-16-2015)

State v. Pittman

Criminal Law: Second-degree robbery is only a lesser included offense of first-degree robbery if the "accusatory instrument recited sufficient facts to satisfy each element of second-degree robbery."

(Filing Date: 12-16-2015)

State v. Skaggs

Sentencing: Under ORS 138.222(5)(b), when an appellate court considers a case with multiple counts including at least one felony, if it reverses the judgment of any count and affirms the others, the case must be remanded to the trial court for resentencing.

(Filing Date: 12-16-2015)

State v. Wehr

Sentencing: The trial court may not impose a sentence requiring payment of court-appointed attorney fees without evidence in the record that the defendant is or may be able to pay such fees. With invited error, a party “cannot be heard to complain,” if the party “was actively instrumental in bringing [it] about."

(Filing Date: 12-16-2015)

Vaughn and Vaughn

Family Law: A trial court retains personal jurisdiction over an out-of-state individual in motions captioned in relation to a dissolution judgment.

(Filing Date: 12-16-2015)

Asbill v. Angelozzi

Post-Conviction Relief: Under ORS 138.640(1), if a judgment document denying post-conviction relief is sufficient even where it does not explicitly state the court’s findings underlying the reasons for denying relief, but makes reference to oral findings on the record which provide a sufficient basis for denying relief.

(Filing Date: 12-09-2015)

Dept. of Human Services v. J. M.

Family Law: To support juvenile court jurisdiction following a motion to dismiss, the court must find that there is a current threat of serious loss or injury to the child and a reasonable likelihood that the threat will be realized, with burden on DHS. The risk of harm must be non-speculative and present at the time of the hearing.

(Filing Date: 12-09-2015)

Federal Express Corp. v. Estrada

Employment Law: Under ORS 656.265(4)(c), the employee must know that he or she has been injured and have good cause for not reporting within the 90 day period.

(Filing Date: 12-09-2015)

Gibson v. Bankofier

Trusts and Estates: To survive summary judgment in proving financial abuse of a vulnerable person under ORS 124.110(1)(a), a plaintiff must show facts to prove that defendant wrongfully took or appropriated money or property from a vulnerable person.

(Filing Date: 12-09-2015)

Gutierrez v. Nooth

Post-Conviction Relief: Under the Fifth Amendment, in order to implicate a defendant’s right to counsel while being questioned, a defendant must know he is speaking to a police officer. Under the Sixth Amendment, a defendant’s right to counsel attaches only once a prosecution has commenced, and encompasses only those crimes formally charged or crimes that, while not formally charged, would be the same under the test in Blockburger v. United States, that whether two charges relate to one act is whether each statutory violation requires proof of a fact that the other does not.

(Filing Date: 12-09-2015)

Masood v. Safeco Ins. Co. of Oregon

Contract Law: under Oregon law, “courts determine whether a contract is illegal by determining whether it violates public policy as expressed in relevant constitutional and statutory provisions and in case law, and by considering whether it is unconscionable.” An adjustment is not the only way for a new contact to be formed, but instead, when the parties agree to make a new contract, then a breach of that new agreement by either party could give rise to new legal rights. Evidence of “other crimes, wrongs or acts,” is not admissible to prove the character of a person in order to show that the person acted in conformity therewith.

(Filing Date: 12-09-2015)

Oatney v. Premo

Post-Conviction Relief: Under the inevitable discovery doctrine, the state must show by a preponderance of the evidence that purportedly derivative evidence was obtained wholly from an independent source or that it would inevitably have been discovered. “Derivative evidence” is any evidence obtained by use—evidentiary or nonevidentiary—of the immunized statement.

(Filing Date: 12-09-2015)

Phillips v. Dept. of Public Safety Standards and Training

Labor Law: When an employment case is heard by an administrator and his findings pertain to allegations of misconduct under OAR 259-008-0070 then the Department of Public Safety Standards and Training must consider that issue resolved in a certification case. However, if the administrator’s decision on allegations of misconduct is not made under OAR 259-008-0070 then the Department of Public Safety Standards and Training is able to review the issues of the case for misconduct under that statute despite the arbitrator’s decision.

(Filing Date: 12-09-2015)

State v. Delong

Criminal Procedure: The scope of consent in a search is "determined by reference to what a typical, reasonable person would have understood by the exchange between the officer and the suspect in light of the totality of the circumstances surrounding the grant of consent in a particular case."

(Filing Date: 12-09-2015)

State v. Gonzalez

Evidence: Under OEC 803(3), hearsay statements intended to prove the state of mind of a defendant are admissible.

(Filing Date: 12-09-2015)

State v. Hightower

Constitutional Law: Under Article I, section 11, of the Oregon Constitution, and State v. Blanchard, a defendant’s right to waive counsel may be limited where the defendant is unclear or equivocal or if granting the request to waive counsel will be disruptive to the orderly conduct of trial.

(Filing Date: 12-09-2015)

State v. Johnson

Criminal Law: Under ORS 163.160(1)(a), to sustain a conviction of fourth-degree assault, the state must prove that the victim suffered a "physical injury" which is defined as "physical impairment or substantial pain" under ORS 161.015(7). Testimonial evidence that the victim felt a "sting" after the incident, alone, does not imply a "physical injury".

(Filing Date: 12-09-2015)

State v. Kasper

Sentencing: A court may not impose attorney fees without announcing them in the presence of a criminal defendant; an imprisoned criminal defendant does not more disadvantaged than those similarly situated when he is denied the ability to credit time already served to a new sentence.

(Filing Date: 12-09-2015)

State v. Kuester

Criminal Law: Convictions for separate crimes stemming from the same event may not be merged unless they share all elements in common; an indefinite sentence of post-prison supervision is not permitted by State v. Stalder.

(Filing Date: 12-09-2015)

State v. Lowell

Criminal Procedure: Denial of Defendant’s motion to suppress text messages was improper, because the Fourth Amendment search incident to arrest exception does not apply to digital data stored on cell phones. Reversed and remanded.

(Filing Date: 12-09-2015)

State v. Martinez

Evidence: A clearly made objection to an exhibit as a whole may be preserved but if the defendant does not distinguish between admissible and objectionable statements and the Court finds that any portion of that exhibit is admissible, the objection will no longer stand.

(Filing Date: 12-09-2015)

State v. R.E.G.

Civil Commitment: Under ORS 427.290, a complete diagnostic report, including a diagnostic evaluation, is required before a civil commitment hearing can continue against an individual.

(Filing Date: 12-09-2015)

State v. Sasser

Sentencing: Under former ORS 137.290 (2009), the court was permitted to impose a Mandatory State Amt of 60$ for each conviction. The legislature repealed the law in 2011, and any convictions after that time may not have the Mandatory State Amt imposed.

(Filing Date: 12-09-2015)

State v. Zolotoff

Criminal Procedure: Trial court may reconsider all counts of Defendant’s conviction for resentencing when on remand for reconsideration and resentencing for part of a felony package. Reversed and remanded for resentencing.

(Filing Date: 12-09-2015)

Dept. of Human Services v. M. C. C.

Civil Procedure: Participating in dependency proceedings for more than two years without raising an objection to the sufficiency of service under the Hague Service Convention waives the objection.

(Filing Date: 12-02-2015)

Federal National Mortgage Association v. Goodrich

Civil Procedure: Under the Oregon Trust Deeds Act, the Mortgage Electronic Recording System (MERS) is neither a lender nor a successor to a lender, and therefore cannot be a proper beneficiary. A non-judicial foreclosure by an assignee of MERS is invalid where there was no recording of the assignment in the county in which the property is located.

(Filing Date: 12-02-2015)

Santoscoy v. DMV

Administrative Law: An agency did not fail to give a license applicant notice for the reason his license was suspended where the applicant failed to raise the notice issue until he brought it up his reply brief.

(Filing Date: 12-02-2015)

Southard v. Larkins

Family Law: A court will not invalidate a marriage unless timely evidence proves that the marriage was invalid. A trial court has jurisdiction and authority to exercise its discretion in awarding custody of children in a marriage dissolution.

(Filing Date: 12-02-2015)

State v. Adams

Criminal Procedure: Former ORS 137.290(2)(b) (2009) does not apply to cases of DUII and other like cases that have been codified outside of chapter 163.

(Filing Date: 12-02-2015)

State v. Amsbary

Constitutional Law: Where the State failed to prove an officer subjectively believed the defendant’s small black pouch was or contained a dangerous or deadly weapon, and that belief was objectively reasonable, the seizure of the evidence did not meet the officer safety exception to the warrant requirement of Article I, section 9, of the Oregon Constitution and must be suppressed absent rebuttal of the presumption that the evidence was tainted by the violation.

(Filing Date: 12-02-2015)

State v. Burkette

Criminal Procedure: In assessing the reasonableness of a delay, the court will examine the attendant circumstances including the “reasons for the delay, the length of the total delay attributable to the state, and the length of any portion of the delay that was unjustified.” Delays attributable to a lack of judicial resources “will, at some point, become unreasonable.”

(Filing Date: 12-02-2015)

State v. C. S.

Criminal Law: The word imminent as used in ORS 163.190 means "near at hand, impending, or menacingly near."

(Filing Date: 12-02-2015)

State v. Carlton

Criminal Law: Trial court did not err in imposing a true life sentence (ORS 137.719) on a defendant based on the conclusion that the defendant’s previous felony under California law (CPC 288) was comparable to an Oregon statute. Affirmed.

(Filing Date: 12-02-2015)

State v. King

Sentencing: Under ORS 138.222(5)(a), where a trial court has amended a judgment adding a restitution award after the 90-day period allowed, the proper disposition of the case on appeal is not reversal but remand for resentencing if the trial court expressed a desire to have the defendant compensate the victim and the court could impose a compensatory fine that would be paid to the victim.

(Filing Date: 12-02-2015)

State v. Perez-Morales

Criminal Procedure: Trial court committed plain error in ordering a defendant to pay court appointed attorney fees without first considering his ability to pay.

(Filing Date: 12-02-2015)

State v. Pichardo

Criminal Procedure: State v. Unger and the companion cases have modified the analysis set forth in State v. Hall say that, “when a defendant seeks to suppress evidence discovered during a consent search that followed unlawful police conduct, ‘the state bears the burden of demonstrating that (1) the consent was voluntary; and (2) the consent was not the product of police exploitation of the illegal stop or search.’”

(Filing Date: 12-02-2015)

State v. Roy

Criminal Procedure: A trial court may err when it fails to give a jury instruction informing the jury that at least 10 jurors must concur as to the specific crime or crimes the defendant intended to commit where a party does not request the instruction; however, on appeal, the Court may decline to consider and correct the alleged error where the defendant did not object to the instruction and the jury verdict met the concurrence requirement anyway.

(Filing Date: 12-02-2015)

State v. Simonsen

Criminal Procedure: When considering an assignment of error under the plain error doctrine, if case law and the statute do not clearly provide an certain outcome, the trial court will not be held to have committed plain error.

(Filing Date: 12-02-2015)

State v. Templeton

Post-Conviction Relief: Under ORS 138.694, it is not necessary to file for and be granted a petition for assistance of counsel prior to filing a motion for which the assistance of counsel was requested.

(Filing Date: 12-02-2015)

State v. Wasyluk

Criminal Procedure: A trial court may exercise its discretion when responding to improper opinion statements by an attorney. When the improper statements are accidental and immediately addressed, it is not an abuse of discretion to issue a cautionary instruction instead of granting a mistrial.

(Filing Date: 12-02-2015)

Blachana, LLC v. BOLI

Appellate Procedure: If a party requests reconsideration of an opinion published by the Court of Appeals based on an erroneous factual finding, the Court will review its decision, and, if necessary, modify its opinion. The Court will then adhere to its opinion as modified.

(Filing Date: 11-25-2015)

R.M.C. v. Zekan

Civil Stalking Protective Order: Under ORS 30.866(1), a stalking protective order is obtainable only where a petitioner can show that the respondent's conduct causes the petitioner to fear for personal safety.

(Filing Date: 11-25-2015)

State ex rel Rosenblum v. Johnson & Johnson

Tort Law: Under the Oregon Unlawful Trade Practices Act, a material risk that a product has a latent defect is exactly the kind of inherent feature of a product implicated. The risk itself is a "fact" for the purposes of the UTPA, and its nondisclosure is actionable.

(Filing Date: 11-25-2015)

State v. Davenport

Appellate Procedure: A typographical error did not affect the Court’s reasoning or disposition; therefore, reconsideration was allowed to correct the error and the opinion was adhered to as modified.

(Filing Date: 11-18-2015)

State v. Jesse

Evidence: Under OEC 702, where a defendant offers expert testimony that explains a connection between the defendant’s behavior and the expert’s opinion of the defendant’s mental health issues, the evidence could help the jury assess the defendant’s behavior and should not be excluded on the basis of a lack of nexus.

(Filing Date: 11-18-2015)

7455 Incorporated v. Tuala Northwest, LLC

Civil Procedure: A third party does not have standing to bring a prescriptive easement claim.

(Filing Date: 11-12-2015)

Loucks v. Beaver Valley's Back Yard Garden Products

Employment Law: Under ORS 652.150, an employer is not required to pay a penalty for failure to timely pay unpaid wages to the estate of a deceased employee, because ORS 652.150 merely applies employers who fail to timely pay employees who have quit.

(Filing Date: 11-12-2015)

Rowen v. Gonenne

Civil Law: Trial court in medical malpractice case acted properly when it: (1) included a study presented to a center’s quality management committee, as it was not a written report “to a peer review body”; (2) excluded a 2010 study because its probative value was outweighed by the danger of unfair prejudice, as it contained information not available to Defendants in 2009; and (3) permitted Defendants to question Plaintiff’s surgeon about the circumstances of unrelated surgeries because it was relevant to establish causation.

(Filing Date: 11-12-2015)

State v. Abbott

Criminal Procedure: A witness, expert or otherwise, may not give an opinion on whether he believes a another witness is telling the truth. This general prohibition against asking one witness to comment on the credibility of another applies on cross-examination where a prosecutor asks a criminal defendant whether a law enforcement officer is lying.

(Filing Date: 11-12-2015)

State v. Febuary

Sentencing: The doctrine of "presumption of vindictiveness" only applies when a criminal defendant is resentenced to a longer or otherwise more severe total sentence.

(Filing Date: 11-12-2015)

State v. Jones

Appellate Procedure: A trial court’s error in excluding evidence in a criminal trial is harmless if, based on other, properly allowed evidence, the judgment rendered would be the same as if the questioned evidence were excluded. A trial court’s error in sentencing is harmless if the ultimate sentence is lawful and error has no practical effect on a criminal defendant.

(Filing Date: 11-12-2015)

State v. Morgan

Criminal Law: Under ORS 164.405(1)(b), to qualify as “another person actually present”, that person does not need to know that a crime has been committed or intend to aid a defendant in commission of that crime. Rather, the person must merely be in proximity to the victim to be an added threat.

(Filing Date: 11-12-2015)

State v. Navaie

Evidence: A trial court may rely on circumstantial evidence when determining whether evidence is hearsay or not hearsay (statement of party opponent) in an OEC 104(1) hearing. Proponents of disputed evidence does not need to show that the testifying witness personally witnessed the party making the statement.

(Filing Date: 11-12-2015)

State v. Satterfield

Criminal Law: A defendant having “good reason to know” is insufficient to convict the defendant of theft by receiving, ORS 164.095(1), which, as interpreted by State v. Korelis, requires actual knowledge or belief that property was stolen.

(Filing Date: 11-12-2015)

State v. Sherman

Criminal Procedure: A passenger is not automatically seized during a traffic stop and the determination of his seizure is whether there was a significant “show of authority” by the police. Moreover, while voluntary consent given by the defendant is an important consideration, it does not cure any unlawful conduct committed by the police. The voluntary consent should be reviewed alongside “the nature of the unlawful [police] conduct, including its purpose and flagrancy, the temporal proximity between the unlawful conduct and consent, and the presence of intervening or mitigating circumstances.”

(Filing Date: 11-12-2015)

Wohrman v. Rogers

Corporations: ORS 63.165 grants limited immunity from personal liability to members of an LLC for obligations undertaken by the LLC, even where the LLC is administratively dissolved and the obligation does not arise from business activities to wind up or liquidate the LLC's business.

(Filing Date: 11-12-2015)

Dept. of Human Services v. J. R.

Juvenile Law: A parent's alcohol abuse may be a sufficient basis for the juvenile court to assert jurisdiction, where the totality of the circumstances pose a "serious threat of loss or injury."

(Filing Date: 11-04-2015)

Dudrov v. State of Oregon

Criminal Law: ORS 138.640(1) imposes a clear-statement rule on judgments in post-conviction proceedings.

(Filing Date: 11-04-2015)

Gonzales v. Taylor

Post-Conviction Relief: Under ORS 138.640 and Datt v. Hill, a judgment in a post-conviction relief proceeding must clearly state the grounds on which the matter was decided, and whether the matter presented a state or federal question. A “clear statement” must (1) identify the claims on which a petitioner asked for relief and make a separate ruling on each claim, (2) state whether each claim for relief is procedurally or legally insufficient, and (3) make apparent the legal basis for denial of relief by identifying each element the court determines a petitioner did not meet.

(Filing Date: 11-04-2015)

Handy v. Lane County

Municipal Law: Under ORS 192.690, to "meet" means something less restrictive than just contemporaneous meetings. The determinative factors for whether a violation of the Public Meetings Law has occurred is whether a sufficient number of officials are involved, what they discuss, and the purpose for which they discuss it.

(Filing Date: 11-04-2015)

SAIF v. Bales

Workers Compensation: ORS 656.386(1)(a) requires the insurer to pay the claimant’s attorney fees in various circumstances, including when the insurer denies a claim for compensation and the claimant’s attorney is instrumental in obtaining rescission of the denial.

(Filing Date: 11-04-2015)

Sate v. Nesbit

Sentencing: Under ORS 137.717(1)(a)(A) (2009), where an indictment contains multiple counts of similar conduct, before a court can use the sentence for one count as a “previous conviction” for purposes of sentencing for the other counts, the State bears the burden to prove that the counts could be tried separately without violating double jeopardy principles.

(Filing Date: 11-04-2015)

Smith v. Dept. of Corrections

Administrative Law: In notice and comment rulemaking, complaints against a fiscal impact statement may only be considered if they show how the fiscal impact of the rule would affect factors not considered by the agency promulgating a rule.

(Filing Date: 11-04-2015)

Soderstrom v. Premo

Post-Conviction Relief: Under ORS 138.640 and Datt v. Hill, a judgment in a post-conviction relief proceeding must clearly state the grounds on which the matter was decided. A “clear statement” must (1) identify the claims on which a petitioner asked for relief and make a separate ruling on each claim, (2) state whether each claim for relief is procedurally or legally insufficient, and (3) make apparent the legal basis for denial of relief by identifying each element the court determines a petitioner did not meet.

(Filing Date: 11-04-2015)

State v. Betcher

Criminal Law: Oregon's non-vouching rule prohibits the admission at trial of evidence of one witness's opinion about another witness's credibility expert or otherwise.

(Filing Date: 11-04-2015)

State v. Crummett

Criminal Procedure: If charges are properly joined, the party seeking severance of those charges bears the burden of showing that the joinder will effectuate substantial prejudice to the defendant and the court is not to presume it. The party must be specific in demonstrating how the joinder will lead to prejudice and the arguments must relate to specific facts of the defendant’s case.

(Filing Date: 11-04-2015)

State v. Flagg

Attorney Fees: A court may not impose attorney fees on a criminal defendant without discussion of the defendant's ability to pay those fees.

(Filing Date: 11-04-2015)

State v. Furrillo

Evidence: Under the automobile exception to a warranted search, a backpack of a passenger can be included as a container that can be searched if the backpack is in the vehicle at the time probable cause for the search arose.

(Filing Date: 11-04-2015)

State v. Graham

Attorney Fees: A court may not impose attorney fees on a criminal defendant without discussion of the defendant's ability to pay those fees.

(Filing Date: 11-04-2015)

State v. Romero

Sentencing: Under ORS 138.692 and State v. Johnson, when making a motion for DNA testing after conviction, a defendant must (1) include an affidavit asserting his innocence, identifying the evidence to be tested and putting forth a theory of defense that the DNA testing would support, and (2) make a prima facie showing of actual innocence that is more than a mere assertion of innocence.

(Filing Date: 11-04-2015)

State v. Saranpaa

Criminal Procedure: The rial court erred when it imposed attorney fees on Defendants in the written judgment but not during Defendants’ hearings.

(Filing Date: 11-04-2015)

State v. Scruggs

Criminal Procedure: A strip search culminating in a highly intrusive search into a suspect's genital or anal areas is justifiable under the search incident to arrest exception only where the search is reasonable in time, scope, and intensity.

(Filing Date: 11-04-2015)

State v. Steele

Constitutional Law: Under Article I, Section 9, of the Oregon Constitution, a police officer must have a "reasonable suspicion," which may include "reasonable safety concerns," to conduct a pat-down search during an investigation.

(Filing Date: 11-04-2015)

State ex rel Willamette Cmty. Hlth. Sols. v. Lane Cty.

Land Use: Under ORS 215.429(4), either a governing body or a designee may permit or deny a land use permit application. An applicant may not file a mandamus action to compel the government body to act if either the governing body or a designee has responded to the application, even if the response was issued after the 150-day limit.

(Filing Date: 10-28-2015)

State v. Carcamo-Tellez

Civil Procedure: Pursuant to ORS 137.225 the court must grant a motion to set aside certain convictions unless findings by clear and convincing evidence are made that “granting the motion would not be in the best interests of justice.” Unstipulated information asserted by counsel without any other proof is not considered evidence.

(Filing Date: 10-28-2015)

State v. D.B.L.

Civil Commitment: An order of civil commitment under ORS 426.130 must be supported by legally sufficient evidence.

(Filing Date: 10-28-2015)

State v. E.K.I.

Civil Commitment: An order committing a person for not more than 180 days under ORS 426.130 must be supported by legally sufficient evidence.

(Filing Date: 10-28-2015)

State v. Sjogren

Evidence: When stopping a person for trespass, an officer’s reasonable suspicion must be supported by facts that would lead a reasonable person to realize the property was not open to the public.

(Filing Date: 10-28-2015)

State v. Smith

Criminal Law: "Use" in ORS 166.220(1)(a) includes both the actual use of physical force and the threat of immediate use of physical force.

(Filing Date: 10-28-2015)

Stone v. Employment Department

Employment Law: When holding a part time employment position, an employee must continue to actively seek full time employment according to ORS 657.155(1)(c) if the employee wishes to continue to receive unemployment benefits during that time period.

(Filing Date: 10-28-2015)

Zimmerman v. LCDC

Land Use: Under ORS 197.175(1) a city must exercise zoning authority consistent with state statutes and applicable LCDC rules articulating statewide development goals. A city’s efforts to comply with LCDC goals is sufficient where it uses the best available data in creating its economic development plan.

(Filing Date: 10-28-2015)

Adams and Adams

Family Law: Under OAR 137-050-0760, a parent's actual and potential income are the only two things allowed to be considered in determining income for support, not the income of other individuals in the house.

(Filing Date: 10-21-2015)

Dept. of Human Services v. A. W. (A158694)

Juvenile Law: A parent’s failure to appear for a status conference does not equate with a parent’s failure to appear for a hearing for a termination of parental rights, and therefore a parent’s failure to appear for a status conference is not grounds for default judgment under ORS 419B.820(7).

(Filing Date: 10-21-2015)

Dept. of Human Services v. A. W. (A159213)

Juvenile Law: Cases will be dismissed from the Court of Appeals as moot, even if otherwise justiciable, when the Court’s decision would no longer have a practical effect on or concerning the rights of the parties.

(Filing Date: 10-21-2015)

Dept. of Human Services v. E. J. E.

Juvenile Law: Parental rights may be terminated based on unfitness of a parent due to conduct or condition seriously detrimental to the child under ORS 419B.504 where it is in the best interests of the child under ORS 419B.500.

(Filing Date: 10-21-2015)

Gonzalez-Aguilera v. Premo

Post-Conviction Relief: In reviewing a claim for plain error, the Oregon Court of Appeals has the ability to use their discretion to correct the error.

(Filing Date: 10-21-2015)

Hall v. State of Oregon

Employment Law: Oregon whistleblower statutes require subjective good faith; an employee may have been wrongfully discharged when he filed a police report against his employer if the filing was objectively reasonable within the circumstances.

(Filing Date: 10-21-2015)

L.D. v. T.J.T.

Juvenile Law: To support jurisdiction over a 19-year-old adult, it must be proven that the original bases for jurisdiction still pose a current threat of serious loss or injury that is reasonably likely to be realized.

(Filing Date: 10-21-2015)

State v. Raymond

Criminal Law: Under Article I, section 9, of the Oregon Constitution, an exigent circumstance exists where an officer has probable cause to believe that alcohol and/or a controlled substance will be found in a suspect’s blood or urine.

(Filing Date: 10-21-2015)

State v. Walker

Attorney Fees: Under ORS 151.505 and ORS 161.665, a defendant cannot be ordered to pay court-appointed attorney fees unless the court makes a determination that the defendant is or may be able to pay the fees, and includes evidence on the record as to that determination.

(Filing Date: 10-21-2015)

Taylor v. Peters

Criminal Procedure: An Oregon inmate who is incarcerated in Colorado under the Western Interstate Corrections Compact (WICC) properly names the Oregon Department of Corrections as a defendant in a petition for a writ of habeas corpus.

(Filing Date: 10-21-2015)

Wieck v. Hostetter

Contract Law: Where the substantial terms of a contract have been agreed on and there is nothing left for future settlement, the fact that the contract has not yet been put into writing does not leave the transaction incomplete and without binding force unless the parties had a positive agreement that it should not be binding until so reduced to writing and formally executed.

(Filing Date: 10-21-2015)

Early v. Employment Department

Employment Law: When determining unemployment benefits, employees are not required to have exhausted every single option after every issue in order to show that they left voluntarily but with good cause; the standard is whether a reasonable and prudent person with the same characteristics and qualities as the employee would have considered the situation so grave that he or she had no reasonable alternative but to voluntarily leave work.

(Filing Date: 10-14-2015)

Goodman v. SAIF Corp.

Workers Compensation: Upon review of a denied claim for a new injury based on a combined condition, the Workers Compensation Board must determine whether the new injury has ceased to be a major contributing cause of or need for treatment for the combined condition.

(Filing Date: 10-14-2015)

Hardy v. Land Board

Land Use: Under ORS 274.400 to 274.412 and OAR ch. 141, div. 121, the State may claim ownership of navigable waterways by demonstrating with substantial evidence the use or susceptibility to use of the waterway, or segment thereof, as a highway of commerce at the time of statehood.

(Filing Date: 10-14-2015)

Lambert v. Premo

Criminal Procedure: The Court of Appeals will not review an unpreserved request for a delayed appeal where the petitioner, on advice of his attorney, requested relief in the form of remand for a new trial and resentencing rather than for delayed appeal.

(Filing Date: 10-14-2015)

Multi/Tech Eng. Svcs. v. Innovative Des. & Constr.

Property Law: In order to prove a perfected construction lien under ORS 87.010(5), a litigant must show that sufficient notice of the lien rights was provided to the opposing party before foreclosing on that lien.

(Filing Date: 10-14-2015)

Severy v. Board of Parole

Sentencing: The Board of Parole must may conduct a hearing, using whatever procedures it deems appropriate, to set each prisoner’s release date according to the matrix in effect when he committed his crime.

(Filing Date: 10-14-2015)

State v. Huffman

Criminal Procedure: Motion to suppress evidence was properly denied where, under the specific facts of a traffic stop, Officer had reasonable suspicion that Defendant had committed a drug-related crime.

(Filing Date: 10-14-2015)

State v. Kelly

Criminal Law: Under ORS 163.575, the evidence must prove beyond a reasonable doubt that children were present at the time alleged illegal activity occurred. Under Article I, section 9 of the Oregon Constitution, an officer may only perform a warrantless search where probable cause exists, such that the arresting officer subjectively believes that it is more likely than not that the suspect committed a crime and if that subjective belief is objectively reasonable under the totality of the circumstances

(Filing Date: 10-14-2015)

State v. Mross

Criminal Law: The standard of determining whether content is a "lewd exhibition" is whether a reasonable fact finder could find, beyond a reasonable doubt, that the content was created "with the intent of stimulating the lust or sexual desires of the person who views it."

(Filing Date: 10-14-2015)

State v. Zepeda

Criminal Law: Pursuant to ORS 161.665(4), the State must bear the burden of proof establishing that the defendant has or might acquire resources to pay for court-appointed attorney fees to be imposed.

(Filing Date: 10-14-2015)

Wall Street Management & Capital, Inc. v. Crites

Contract Law: "Where a guarantor signs a guaranty outside the creditor's presence and without having first received a direct request from the creditor asking that the guarantor do so, the guarantor has merely made an offer to the credit to form a contract" and acceptance by the creditor would be necessary to form a contract.

(Filing Date: 10-14-2015)

State v. Hickman

Constitutional Law: Under Article I, sections 2 and 3, of the Oregon Constitution, the State is not required to prove that a defendant acted with a knowing mental state rather than a lower mental state required by statute where a defendant claims his criminal acts were motivated by free exercise of religion principles. (Overturns Meltebeke v. BOLI).

(Filing Date: 10-08-2015)

Barrett v. Peters (A155789)

Habeas Corpus: Under the Interstate Corrections Compact (ORS 421.245 to ORS 421.254), a petition for a writ of habeas corpus by a plaintiff under Oregon legal custody who is serving a sentence in a Florida prison properly names the Oregon director of the Department of Corrections, and can seek relief from conditions of confinement that are unconstitutional under the Oregon Constitution.

(Filing Date: 10-07-2015)

Barrett v. Peters (A156271)

Habeas Corpus: Individuals who are under the legal custody of the State of Oregon, but are incarcerated in Florida pursuant to the Interstate Corrections Compact (ORS 421.245 to ORS 421.254), retain the right to seek habeas corpus relief in Oregon for constitutionally deficient conditions of confinement in Florida.

(Filing Date: 10-07-2015)

State v. Heise-Fay

Criminal Procedure: Compelling circumstances are when a suspect is placed in a position that a reasonable person in that position would feel compelled to answer a police officer’s questions. Compelling circumstances are determined through a totality of the circumstances based on a four factor test set forth in State v. Roble-Baker, 340 Or 631, 641 (2006).

(Filing Date: 10-07-2015)

State v. J.S.

Evidence: ORS 426.005(1)(e)(B) provides that for a person to be involuntarily committed there must be evidence that the person is unable to provide basic personal needs and is not already receiving such care.

(Filing Date: 10-07-2015)

State v. Mulvaine

Criminal Law: Under the new standard announced in State v. Mills, under Article I, section 11 of the Oregon Constitution, the State does not have to prove appropriate venue beyond a reasonable doubt, and a defendant must challenge venue in a pretrial motion.

(Filing Date: 10-07-2015)

State v. Nutt

Sentencing: ORS 153.633 provides that up to $60 of fines paid by criminal defendants are allocated to the state; the statute is not intended to impose an additional $60 fine on criminal defendants.

(Filing Date: 10-07-2015)

State v. Ramirez-Reyes

Criminal Law: Under ORS 151.505(3), a trial court commits plain error by imposing $5,000 in court-appointed attorney fees without considering whether the defendant "is or may be able to pay" the fees.

(Filing Date: 10-07-2015)

Sullivan v. Popoff

Criminal Procedure: An attorney's decision not to raise certain objections does not automatically call into question the reasonable professional skill and judgment of defense counsel under the Oregon Post-Conviction Relief Act.

(Filing Date: 10-07-2015)

B. R. v. Department of Human Services

Juvenile Law: If a trial court allows a parent to appear at the hearing over the telephone, they must allow the parent to participate, including testifying against DHS's case against them.

(Filing Date: 09-30-2015)

C. P. v. Librande

Appellate Procedure: Appellants have the responsibility to provide the appellate court with a sufficient record of the trial court proceeding. Absent a transcript of a trial proceeding, the appellate court may not have enough factual information to judge the appeal.

(Filing Date: 09-30-2015)

Department of Human Services v. J. C. H.

Juvenile Law: On reconsideration, the Court removed reference to one allegation by DHS against a parent that did not support the trial court's jurisdictional decision.

(Filing Date: 09-30-2015)

Dept. of Human Services v. J.R.

Juvenile Law: In order for the juvenile court to assume jurisdiction over a minor, the court must find that there is current serious, nonspeculative threat of harm to the child that is reasonably likely to be realized.

(Filing Date: 09-30-2015)

J.A.W. v. Employment Department

Administrative Law: The unemployment insurance extended benefit statutes, ORS 657.321 – 657.329, do not specify a time limitation for filing for extended benefits, and applying the time limitation specified for filing for regular benefits could lead to an inconsistent result where an applicant was unable to file for or ineligible to receive the extended benefits.

(Filing Date: 09-30-2015)

MT & M Gaming, Inc. v. City of Portland

Standing: Under ORS 28.020, to seek relief under the Uniform Declaratory Judgments Act, a plaintiff must establish that his or her rights, status, or other legal relations are affected by the relevant instrument.

(Filing Date: 09-30-2015)

Philbert v. Kluser

Tort Law: Affirmed without discussion.

(Filing Date: 09-30-2015)

State v. Adams

Criminal Law: Interfering with a peace officer (ORS 162.247) requires proof of defendant’s intent to interfere with officer’s lawful duties respecting a third party.

(Filing Date: 09-30-2015)

State v. Austin

Criminal Law: Under the Oregon Supreme Court’s decision in Harrell/Wilson, a judge’s discretion to consent to a defendant’s Article I, section 11 right to request to waive a jury trial exits primarily to ensure that a defendant’s rights at trial are protected by ensuring the defendant is adequately represented and not improperly influenced. A judge may also consider judicial economy and speed.

(Filing Date: 09-30-2015)

State v. Barger

Sentencing: The Court of Appeals has discretion to reverse trial court's imposition of attorney fees where the trial court did not determine the defendant's ability to pay attorney fees.

(Filing Date: 09-30-2015)

State v. Belander

Remedies: When a person is convicted of a crime that results in economic damages, they can forced to pay restitution, which is a specific amount that equals the full amount of the victim’s economic damages as determined by the court. Economic damages include objectively verifiable monetary losses including reasonable and necessarily incurred costs due to loss of use of property and reasonable costs incurred for repair or for replacement of damaged property, whichever is less.

(Filing Date: 09-30-2015)

State v. Castillo-Lima

Criminal Law: A police officer's search of a criminal suspect's pockets must be supported by something more than reasonable suspicion. Further, in making snap decisions in the heat of the moment, police officers are to be granted considerable latitude to take reasonable safety precautions.

(Filing Date: 09-30-2015)

State v. D.Z.

Civil Procedure: When a trial court's written order is inconsistent with its oral findings, it may be vacated and remanded for entry of a correct written order, where the written form is highly susceptible to clerical error.

(Filing Date: 09-30-2015)

State v. Haugen

Evidence: The Lawson/James framework gives the three requirements for addressing challenges to eyewitness identification reliability.

(Filing Date: 09-30-2015)

State v. McGrattan

Evidence: A warrantless search may be conducted under the emergency aid doctrine only where entry is necessary to render immediate aid to persons, or to assist persons who have suffered, or who are imminently threatened with suffering, serious physical injury or harm.

(Filing Date: 09-30-2015)

State v. Morgan

Evidence: The automobile exception authorizes warrantless searches when officers have probable cause to search a vehicle that is mobile at the time that the police encounter it in connection with a crime; any search of an automobile that was parked, immobile and unoccupied at the time the police first encountered it in connection with the investigation of a crime must be authorized by a warrant.

(Filing Date: 09-30-2015)

State v. Turner

Criminal Law: A defendant's motion to sever claims may be denied if crimes against multiple victims are “sufficiently simple and distinct to mitigate the dangers created by joinder"; Court of Appeals may reverse trial court's imposition of attorney fees if the court did not discuss defendant's ability to pay those fees.

(Filing Date: 09-30-2015)

State v. Vennell

Criminal Procedure: For an officer to have reasonable suspicion to conduct a search, the smell of drugs on the suspect can meet the objective prong of the reasonable suspicion test.

(Filing Date: 09-30-2015)

State v. Worth

Sentencing: Pursuant to ORS 161.737(1), a dangerous offender’s determinate sentence can be considered a departure sentence which would be governed by the “400%” rule set forth for sentencing purposes in OAR 213-008-0007(3). OAR 213-012-0020(5)’s rules apply to consecutive presumptive sentences. “The ultimate result is that the “shift-to-I” and “200%” rules have no direct application to dangerous offender sentences and are implicated only derivatively if a trial court imposes a dangerous offender determinate term in excess of the guidelines presumptive sentence.”

(Filing Date: 09-30-2015)

Swank v. Terex Utilities, Inc.

Civil Procedure: Under ORCP 4 D, a trial court has specific jurisdiction over a defendant if there is a nexus between the forum state, that defendant, and the subject matter of the litigation. Under ORCP 4 A, a trial court lacks general jurisdiction over a defendant if the plaintiff fails to show that defendant had “substantial and not isolated” contacts within the forum state.

(Filing Date: 09-30-2015)

Blachana, LLC v. BOLI

Constitutional Law: Article I, section 8 of the Oregon Constitution does not protect coercive speech found to violate ORS 659A.403, 659A.406, and 659A.409.

(Filing Date: 09-24-2015)

AS 2014-11 5W LLC v. Kaplan Landlord, LLC

Civil Procedure: Under ORCP 47(C), summary judgment is only appropriate if there are no genuine issues of material fact and the non-moving party is entitled to judgment as a matter of law. There are no genuine issues of material fact if, when viewing the record in the light most favorable to the non-moving party, no reasonable juror could return a verdict for the non-moving party on the matter of the summary judgment motion.

(Filing Date: 09-23-2015)

Eklof v. Steward

Post-Conviction Relief: Under ORS 138.550(3) it is the petitioner's duty to submit evidence that the grounds for relief asserted could not have been reasonably raised in the original petition.

(Filing Date: 09-23-2015)

Hamlin v. PERB

Administrative Law: Under ORS 238.465, Public Employee Retirement System participants can have their retirement accounts divided after a judgment to an estate.

(Filing Date: 09-23-2015)

State ex rel O'Connor v. Helm / Clackamas County

Civil Procedure: Where a party files a petition for a writ of mandamus to compel a final order, ORS 34.740 does not require a court grant a motion to amend that effectively converts the petition for a writ of mandamus into a declaratory judgment action.

(Filing Date: 09-23-2015)

State v. Kurtz

Criminal Procedure: Under ORS 151.505(3), a defendant pays a court-appointed attorney fee only if they can "or may be able to” pay them. A court lacks authority to impose court-appointed attorney fees unless the court finds on the record that the person is or may be able to pay those costs.

(Filing Date: 09-23-2015)

State v. Opitz

Sentencing: An appellate court may reverse judgment requiring defendant to pay attorney fees if the trial court erred in its assessment of defendant's ability to pay those fees; an appellate court does not have authority to exercise discretion when the trial court refuses to order defendant eligible for sentence modification.

(Filing Date: 09-23-2015)

State v. Sanchez

Evidence: Under Article 1, section 9 of the Oregon Constitution, when an individual's right to be protected against unreasonable searches and seizures is violated, the court must look to the totality of circumstances in determining whether to suppress evidence collected thereafter. An individual’s consent does not automatically break the causal chain between the illegal search and seizure and evidence collected.

(Filing Date: 09-23-2015)

Department of Human Services v. K.W.

Family Law: Under ORS 419B.923(1), the juvenile court has discretion to set aside a default termination of parental rights judgment if it had been entered into improperly, but only under certain circumstances.

(Filing Date: 09-16-2015)

Rhodes v. U.S. West Coast Taekwondo Assn., Inc.

Tort Law: In a negligence action, a former employer may be liable for harm caused by negligent training and supervision of employees and unsafe operating policies, where by express agreement employees were to be hired by the new employer taking over operations.

(Filing Date: 09-16-2015)

Sanger v. Employment Dept.

Administrative Law: The Employment Appeals Board is required to review de novo appeals regarding unemployment benefits.

(Filing Date: 09-16-2015)

State v. Alexander

Criminal Law: For third degree assault, extreme indifference to the value of human life is satisfied by intoxicated driving plus other erratic, reckless conduct that demonstrates a state of mind where an individual cares little about the risk of death of a human being.

(Filing Date: 09-16-2015)

State v. Crosswhite

Criminal Law: Under ORS 167.325(1), an individual has "custody or control" over an animal if that individual has authority to guide or manage an animal, or direct or restrain the animal.

(Filing Date: 09-16-2015)

State v. Gerhardt

Remedies: When determining whether restitution for a victim arising from criminal conduct of a defendant, the court should look to when the conduct causing restitution owed occurred and whether it is a direct result of the initial criminal conduct and not latter criminal conduct stemming from the initial criminal conduct.

(Filing Date: 09-16-2015)

State v. Mattheisen

Constitutional Law: Under Article I, section 12 of the Oregon Constitution, officers must give a suspect Miranda warnings when questioning occurs under compelling circumstances. Courts look to four factors to determine whether a situation is compelling: (1) the location of the encounter; (2) the length of the encounter, (3) the amount of pressure exerted on the defendant; and (4) the defendant’s ability to terminate the encounter.

(Filing Date: 09-16-2015)

State v. Rodriguez-Moreno

Criminal Law: A defendant’s confession that leads to a felony murder conviction is voluntarily given where detectives told Defendant that they needed to know what happened to a child in order for the doctors to treat her, because, given the totality of the circumstances, the detective’s statement did not cultivate coercive circumstances.

(Filing Date: 09-16-2015)

State v. Sokell

Sentencing: Under ORS 181.805, sexual abuse is defined as “sexual abuse in any degree” as well as “any attempt to commit” sexual abuse in any degree. A sentence’s duration is not “proportioned to the offense” when the length of the sentence would shock the moral sense of a reasonable person under the circumstances.

(Filing Date: 09-16-2015)

State v. Sullivan

Remedies: A trial court may not impose restitution arising out of dismissed charges when the defendant did not admit the charged criminal conduct. Under ORS 138.222(5), when a trial court errs in imposing restitution a case may only be remanded if there are permissible alternatives a trial court could adopt upon resentencing.

(Filing Date: 09-16-2015)

State v. Watchman

Attorney Fees: Under ORS 151.505(3) and ORS 161.665(4), a trial court commits reversible error by imposing attorney fees on a defendant if it does not indicate on the record that the defendant can pay those attorney fees.

(Filing Date: 09-16-2015)

State v. Waters

Environmental Law: DEQ's lack of authority to issue a permit is not a valid defense to not owning a permit. Suction dredging does not cause a discharge requiring an NPDES permit.

(Filing Date: 09-16-2015)

Emerson v. Mt. Bachelor, Inc.

Tort Law: In determining whether a defendant committed "grossly negligent" conduct, summary judgment is inappropriate where the plaintiff can show that the defendant has acted with indifference to the probable consequences of a dangerous instrumentality, that, with slight diligence should have been observed.

(Filing Date: 09-10-2015)

Lucht v. Mulino Hangar Cafe & Roadhouse, LLC

Civil Procedure: A trial court may not sua sponte dismiss a case where it had set a deadline for resolution but subsequently granted Plaintiff leave to amend the complaint, removing the plaintiff's ability to comply with the deadline.

(Filing Date: 09-10-2015)

Oil Re-Refining Co. v. Dept. of Environ. Quality

Environmental Law: Under 40 CFR § 263.20(a)(1) or ORS 466.095(1)(c), when charging an entity with a violation of permit regulations regarding the transport and treatment of hazardous waste, the mental state of a charged entity at the time of the violation is irrelevant.

(Filing Date: 09-10-2015)

Private Capital Group, LLC v. Harris

Consumer Credit: Under ORS 18.954, supplemental judgments granting an additional award cannot be ordered after a sheriff’s sale of property at issue. Any additional bid over the award amount must be disbursed.

(Filing Date: 09-10-2015)

Schultz v. Franke

Appellate Procedure: To review for attachment under ORS 138.580 plain error applies when the petition meets three requirements: the error is an error of law, the legal point is obvious and not reasonably in dispute, and the record is sufficiently well-developed that a court “need not go outside the record or choose between competing inferences” to address the error.

(Filing Date: 09-10-2015)

State v. Brumbach

Evidence: To preserve an argument for appeal, “a party must provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted.”

(Filing Date: 09-10-2015)

State v. Flores-Celestino

Appellate Procedure: Trial court's error in determining its authority to vacate its own judgment not considered sufficiently "obvious" for the purpose of plain error review.

(Filing Date: 09-10-2015)

State v. Gordon

Criminal Procedure: Under Art. I, section 9 of the Oregon Constitution, a traffic stop is unlawful unless the officer has probable cause to believe the driver committed a violation. Probable cause is established where the officer subjectively believes a violation occurred and if that belief is objectively reasonable under the circumstances.

(Filing Date: 09-10-2015)

State v. Howe

Sentencing: Pursuant to ORS 161.067(3) a defendant's multiple count assault convictions must be merged. To prevent merging, the state must show that there was a sufficient pause in the defendant's conduct to permit an opportunity for defendant to renounce the criminal intent of his conduct, and that, despite this pause, defendant continued to engage in criminal activity.

(Filing Date: 09-10-2015)

State v. Murphy

Criminal Law: Police officer’s subjective belief that Driver had violated ORS 811.315 (obstructing the flow of traffic) by driving in the left lane at 32 MPH in a 35 MPH zone is objectively unreasonable. Reversed and remanded.

(Filing Date: 09-10-2015)

Kiryuta v. Country Preferred Ins. Co.

Insurance Law: When a defendant insurance company files a safe-harbor provision but takes steps to pursue litigation outside of damages sought by the plaintiff insured, the safe-harbor provision is nullified.

(Filing Date: 09-02-2015)

Scheffel v. Oregon Beta Chapter of Phi Kappa Psi Fraternity

Tort Law: A fraternity and its local chapter may have a duty to protect social guests against reasonably foreseeable intentional acts of a third party, where the negligence of the local chapter placed a person at an unreasonable risk of intentional criminal conduct and the fraternity may have undertaken supervision and control of the local chapter.

(Filing Date: 09-02-2015)

State v. Abram

Criminal Law: Under ORS 166.250, a firearm carried in belt holster is not “concealed” and the State must prove beyond a reasonable doubt that the defendant was not carrying a firearm openly in a belt holster.

(Filing Date: 09-02-2015)

State v. Justice

Criminal Law: Under ORS 135.432(4), a trial court abuses its discretion by denying a guilty plea pursuant to a plea agreement which lessens the defendant's charge from a misdemeanor to a violation, when that trial court's decision is based solely on policies prohibiting such practices, and the decision is not granted individualized "due consideration."

(Filing Date: 09-02-2015)

Van Patten v. State of Oregon

Constitutional Law: If the statutory language is plain, a case must be determined according to the terms of the statute; however, where a term is ambiguous the phrases must be determined within the context of the current proceedings. It is unclear where there even exists a Due Process right to privacy, but if such a right exists it must be considered in light of the specific provisions of the challenged act and any intrusions must be weighed against the public interest.

(Filing Date: 09-02-2015)

Borum v. Employment Dept.

Employment Law: For the purposes of overpayment of unemployment compensation, a claimant may be considered “at fault” in bringing about the overpayment, and its repayment cannot be waive if the claimant mistakenly provided inaccurate information on a benefits application. Affirmed.

(Filing Date: 08-26-2015)

Dept. of Human Services v. T.M.S.

Family Law: In juvenile dependency cases, it is not sufficient for a parent seeking reunification to use cooperation with provided services as basis for reversal of a court's decision to change a permanency plan from reunification to adoption.

(Filing Date: 08-26-2015)

SAIF v. Traner

Workers Compensation: Under ORS 656.262(11), if an insurer or self-insured employer unreasonably denies a workers’ compensation claim, and the denial is overturned, then the insurer or self-insured employer is obligated to pay the claimant’s attorney fee, even if no compensation is awarded.

(Filing Date: 08-26-2015)

State v. Althof

Evidence: Under OEC 702, a detective will qualify as an expert to give testimony at trial where the detective has extensive background, knowledge and experience in the area of delayed reporting of sexual abuse even though he holds no advanced degree in that area.

(Filing Date: 08-26-2015)

State v. Brown

Constitutional Law: Under Article I, section 9, of the Oregon Constitution and the Fourth Amendment, just because a defendant temporarily sets down a piece of property does not mean it is abandoned for purposes of conducting a warrantless search of that property.

(Filing Date: 08-26-2015)

State v. Hawkins

Attorney Fees: Under ORS 151.505(3) and ORS 161.665(4), a trial court commits plain error by requiring a criminal defendant to pay court-appointed attorney fees unless the court finds the defendant can or will be able to pay them.

(Filing Date: 08-26-2015)

State v. Jay

Evidence: A prosecutor's mention of questions that an arresting officer asked Defendant during the arrest are considered sufficiently incidental to statements made by Defendant. Accordingly, they are properly excluded from evidence.

(Filing Date: 08-26-2015)

State v. Logan

Appellate Procedure: When objecting to character evidence, an objection must also be made regarding the limiting instruction in order to argue that issue on appeal.

(Filing Date: 08-26-2015)

State v. Maciel-Figueroa

Criminal Law: An informant’s assertion that a defendant threatened to break the property of another was not enough to establish reasonable suspicion of assault or criminal mischief, and evidence gained pursuant to this information is therefore inadmissible.

(Filing Date: 08-26-2015)

State v. Miles

Criminal Law: To satisfy the subjective belief element of first-degree sexual abuse (ORS 164.245) the victim need only consider the area of their body that was touched to be one that is ordinarily to be touched by people who are intimately close to them. For a three year old, this included body parts where her parents would touch her such as her hips and legs.

(Filing Date: 08-26-2015)

State v. Strye

Criminal Law: A defendant does not need to admit to harmful acts in order for a jury to consider whether, if the defendant committed the alleged acts, that the defendant did so in self-defense.

(Filing Date: 08-26-2015)

State v. Vanorum

Criminal Procedure: A trial court plainly errs by using ambiguous jury instructions in a criminal trial, particularly where the Oregon Supreme Court has previously ruled that the jury instruction is an improper statement of law. Such an error is sufficiently plain and harmful that the Court of Appeals can exercise its discretion to reverse the conviction and remand for a new trial.

(Filing Date: 08-26-2015)

Berg v. Nooth

Criminal Law: A prosecutor’s “extrinsic” promises not to prosecute third parties in order to induce a guilty plea was not unconstitutional as a matter of law.

(Filing Date: 08-19-2015)

DeAngeles and DeAngeles

Family Law: When considering a spousal award for maintenance support, it is "improper to award support for a period of time that is defined by a contingency the occurrence of which is a matter of mere speculation."

(Filing Date: 08-19-2015)

Dept. of Human Services v. E.N.

Family Law: Parental rights may be terminated if a parent is determined to be unfit as a parent, if integration of the child into the parent's care is improbable due to conduct or conditions not likely to change, and if termination is in the best interests of the child.

(Filing Date: 08-19-2015)

Eastern Oregon Mining Association v. DEQ

Administrative Law: Under ORS 14.175, when a permit issued by an Oregon agency expires, and a new permit is issued that is the same as the expired permit, a challenge to the expired permit may be dismissed as moot, where the issues are not likely to evade judicial review in a future challenge to the new permit.

(Filing Date: 08-19-2015)

Gattucio v. Averill

Tort Law: For the purpose of determining liability under ORS 124.115, a "person" refers to the defendant entity itself, not to natural persons acting on behalf of the entity.

(Filing Date: 08-19-2015)

Hoogendam and Hoogendam

Family Law: A Stipulated General Judgment of Dissolution of Marriage entered by the trial court is only binding when it (1) accurately reflects the agreed-upon terms of the parties; (2) is signed by both parties; and (3) incorporates documents and terms that are agreed upon by the parties on the record.

(Filing Date: 08-19-2015)

Hooper v. Division of Medical Assistance Programs

Civil Procedure: Under ORS 14.175, a case that might otherwise be ruled as moot can still be heard if it meets the three requirements laid out in the statute.

(Filing Date: 08-19-2015)

Moorehead v. TriMet

Tort Law: In a slip and fall negligence case, absent proof of an owner’s knowledge of a foreign substance on a floor, a plaintiff invitee’s action will fail. Without such proof, whether or not the foreign substance created an unreasonable risk of harm is not relevant.

(Filing Date: 08-19-2015)

Ornduff v. Hobbs

Civil Procedure: An attorney fee statement described in ORCP 68 qualifies as a “motion” or “pleading” under ORCP 15 D, and a court may grant a party permission to file the fee statement after the expiration of the ORCP 68 C(4)(a) filing period.

(Filing Date: 08-19-2015)

State v, Rabanales-Ramos

Criminal Procedure: A police officer does not have probable cause to perform a traffic stop under ORS 811.507 when that officer has only observed a driver looking at a lighted device intermittently over a period of ten seconds, and the officer does not observe the driver to be pushing buttons, talking, or holding the phone to the ear.

(Filing Date: 08-19-2015)

State v. Benning

Evidence: A violation of a defendant’s rights under Article I, section 9, of the Oregon Constitution requires an analysis using the Unger factors including temporal proximity; mitigating circumstances; intervening circumstances (without using the Dempster/Snyder rule, which is no longer good law); purpose and flagrancy of the unlawful police conduct; and the nature, extent, and severity of the constitutional violation.

(Filing Date: 08-19-2015)

State v. Fowler

Appellate Procedure: Arguments made on appeal that were not made before the trial court cannot be the basis for the Court’s opinion unless the Court finds that the record would have developed materially the same under the new argument as under the actual argument made to the trial court.

(Filing Date: 08-19-2015)

State v. Hendricks

Criminal Law: Under ORS 163.160, “physical injury” can be satisfied by impairment of a physical condition depending on three factors: (1) the nature of the affected bodily function or organ; (2) the degree of effect and; (3) its duration.

(Filing Date: 08-19-2015)

State v. Hess

Criminal Law: When expert testimony that is proffered has no bearing on the capability of a criminal Defendant to perform a certain act, when that performance is the sole matter in question, it is irrelevant and should be excluded.

(Filing Date: 08-19-2015)

State v. Kawamoto

Criminal Procedure: Under ORS 163.225, a defendant may be found guilty of kidnapping by way of "secret confinement" of a victim in a place where the victim is "unlikely to be found" by individuals who would reasonably be expected to assist the victim, even when the victim's location is known by the defendant's accomplices. Under ORS 163.411, unlawful sexual penetration by way of forcible compulsion is reasonably found when an extended episode of violence, or threats of future violence, precedes the penetration.

(Filing Date: 08-19-2015)

State v. Lang

Criminal Law: Marijuana smoke smell coming from a defendant’s residence is not enough to establish probable cause of criminal mischief for a search warrant.

(Filing Date: 08-19-2015)

State v. McPhail

Criminal Law: The defenses of self-defense and choice of evils require an imminence element to be satisfied. Imminence will be found when the proponent of the defense is faced with a direct threat of immediate injury at the time. Preemptively arming oneself to prevent violence at an unknown point in the future does not satisfy the imminence element.

(Filing Date: 08-19-2015)

State v. Mitchell

Evidence: Under the Fourth Amendment, whether the causal connection between unlawful seizure of a defendant and the subsequent discovery of evidence is sufficiently attenuated by the intervening discovery of an outstanding warrant so as to purge the taint of the illegality depends on the temporal proximity between the unlawful police conduct and the discovery of the evidence, the presence of intervening circumstances, and the purpose and flagrancy of the unlawful police conduct.

(Filing Date: 08-19-2015)

State v. Reeves

Appellate Procedure: The law of “case doctrine” states that when a ruling has been made in a particular case by an appellate court, while it may be overruled in other cases, it is binding upon both the inferior court in any further proceedings in the same litigation and upon the appellate court itself in any subsequent appeal.

(Filing Date: 08-19-2015)

State v. Thunderbird

Criminal Law: A convicted defendant seeking DNA testing pursuant to ORS 138.690 to 138.698 must identify specific evidence to be tested that was gathered during the prosecution process.

(Filing Date: 08-19-2015)

West Hills Development Co. v. Chartic Claims

Insurance Law: If an injured claimant can recover under the allegations made in the complaint upon any basis for which the insurer affords coverage, that insurer is obligated to defend the insured. Additionally, even if not specifically alleged, extrinsic evidence proving the insured-insurer relationship existed, can be used.

(Filing Date: 08-19-2015)

Johnson v. State Board of Higher Education

Tort Law: Under the Oregon Tort Claims Act (OTCA), the state is not obligated to defend a public employee against tort claims if, after investigation, the state determines that alleged tort arises from an incident outside of the course and scope of employment and the employee does not raise a question of fact challenging the state's determination.

(Filing Date: 08-12-2015)

State v. Blan

Criminal Law: Under ORS 163.165, direct physical contact with the dangerous weapon is not required to satisfy the “by means of” prong of third-degree assault.

(Filing Date: 08-12-2015)

State v. Davenport

Evidence: The officer-safety exception to the warrant requirement of search and seizure does not apply to situations in which a suspect is cooperative and does not cause the officer to reasonably suspect that the suspect poses a serious risk or harm.

(Filing Date: 08-12-2015)

State v. G.R.M.

Evidence: Evidence that a complaining witness instigated physical altercations with a criminal defendant is sufficient for a jury to potentially find that witness biased and may be used as evidence for the purpose of impeachment.

(Filing Date: 08-12-2015)

State v. Harris

Evidence: Under ORS 138.697(1), a circuit court order granting DNA testing is not “limited” by a condition that a defendant may not collaterally attack his or her convictions if no exculpatory evidence is found.

(Filing Date: 08-12-2015)

State v. Leahey

Criminal Procedure: Under the Article I, Section 9 of the Oregon Constitution, a passenger of a vehicle is not subject to an unlawful stop when officers request that the defendant wait outside the car during a search. Further, under the same section, a passenger who consents to a patdown search and a search of a duffel bag is not subject to an unlawful search.

(Filing Date: 08-12-2015)

State v. Lindemann

Criminal Law: Under ORS 153.633(1), a trial court may not impose additional $60 fees upon a defendant if that court has already imposed penalty fees related to the convictions.

(Filing Date: 08-12-2015)

State v. Pierce

Sentencing: When a trial court announces a defendant's sentence on the record and decides what programs they are eligible for under ORS 137.750, the defendant must voice an objection at that point in order to preserve a claim of error that the defendant is eligible for more programs.

(Filing Date: 08-12-2015)

State v. Radtke

Evidence: Under Article I, section 9 of the Oregon Constitution, whether a person has been seized depends on whether a reasonable person would believe an officer intentionally and significantly restricted, interfered with, or otherwise deprived the person of his or her liberty or freedom of movement, which is a fact-specific inquiry dependent on examination of the totality of the circumstances.

(Filing Date: 08-12-2015)

State v. Tiscornia

Criminal Law: A trial court commits plain error by imposing attorney fees on defendant when the court used only work history and no other information regarding whether the defendant “is or may be able” to pay attorney fees.

(Filing Date: 08-12-2015)

State v. Wiggins

Criminal Law: A trial court errs by instructing the jury on first-degree criminal mischief when the dollar amount of damaged property does not rise to the necessary level.

(Filing Date: 08-12-2015)

State v. Williams

Criminal Procedure: A motion to sever will only be granted under ORS 132.560(3) if the "defendant is substantially prejudiced by a joinder of offenses."

(Filing Date: 08-12-2015)

Weems v. Winn

Family Law: A trial court must follow the statutory methodology in ORS 107.137 in determining child custody.

(Filing Date: 08-12-2015)

Boardmaster Corp. v. Glass

Professional Responsibility: ORS 479.820 does not allow a county to disconnect electrical service because a failure to obtain a permit is not necessarily a failure to comply with minimum safety standards. Therefore, a grant of summary judgment for a malpractice claim based on a contrary understanding of that statute is inappropriate.

(Filing Date: 07-22-2015)

Dept. of Human Services v. C.A.

Juvenile Law: Evidence of substance abuse by a parent, and that parent's lack of sole custody, are not sufficient to prove that a child's circumstances and conditions present a non-speculative risk to the child's safety.

(Filing Date: 07-22-2015)

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

Family Law: The Court did not reach the question of whether Father would be deprived of constitutionally sufficient notice if DHS terminated parental rights based on different grounds from those upon which DHS originally established jurisdiction. Instead, the Court found that DHS had proven some of the original allegations by clear and convincing evidence. Affirmed.

(Filing Date: 07-22-2015)

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

Juvenile Law: Generalized assumptions about a mother's narcolepsy and father's alleged methamphetamine abuse are insufficient evidence for a juvenile court to assert jurisdiction over a child.

(Filing Date: 07-22-2015)

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

Family Law: Under ORS 419B.923(1)(b), the concept of excusable neglect encompasses 'a parent’s reasonable, good faith mistake as to the time or place of a dependency proceeding.'

(Filing Date: 07-22-2015)

Dept. of Human Services v. M.P.P.

Juvenile Law: Termination of parental rights requires clear and convincing evidence that it is warranted by both the conduct of the parent and the best interests of the child.

(Filing Date: 07-22-2015)

Durette v. Virgil

Evidence: Under OEC 401, if experts in a field typically rely on studying photographs and particular statistical data, then that methodology of analysis will be sufficient to avoid excluding the testimony. An expert may be qualified to testify to scientific evidence under OEC 702, even where that expert is unlicensed by the applicable regulatory body.

(Filing Date: 07-22-2015)

Hartwell v. Board of Parole

Parole and Post-Prison Supervision: According to OAR 255-30-025(4), a prisoner does not have to choose between an assistant and another person speaking on their behalf at an exit interview hearing if the prisoner needs assistance communicating to the Board.

(Filing Date: 07-22-2015)

Luton v. Willamette Valley Rehabilitation Center

Workers Compensation: A diagnosed medical condition arising out of workplace exposure is properly analyzed as an occupational disease rather than a workplace injury, if the onset of the particular condition, rather than the specific symptoms, arises over a gradual period of time.

(Filing Date: 07-22-2015)

S. J. R. v. King

Civil Stalking Protective Order: Under ORS 30.866(1)(a) a person seeking a stalking protective order must show evidence of two or more qualifying contacts.

(Filing Date: 07-22-2015)

Smith v. Board of Parole

Administrative Law: Administrative rules OAR 255-030-0025 and OAR 255-030-0026 are valid in accordance with the policies of the Board of Parole.

(Filing Date: 07-22-2015)

Smith v. OHSU Hospital and CLinic

Civil Procedure: ORS 30.275(9) does not bar application of ORS 12.160 (2005) to OTCA claims, because ORS 12.160 does not provide a limitation on the commencement of an action but instead provides for tolling the time allowed for the commencement of an action.

(Filing Date: 07-22-2015)

State v. Brown

Evidence: Other acts evidence that is offered for non-propensity purposes—i.e., to prove motive, intent, identity, or lack of mistake or accident—generally will be admissible as long as the particular facts of the case do not demonstrate a risk of unfair prejudice that outweighs the probative value of the evidence.

(Filing Date: 07-22-2015)

State v. Cox

Criminal Law: After the state urged the jury to use character evidence and inflammatory facts not in evidence to find Defendant guilty of the charged crimes, the trial court’s jury instruction that the jury could not consider character traits unrelated to the charged crimes, without identifying those traits, was insufficient to cure the prejudice to Defendant.

(Filing Date: 07-22-2015)

State v. Horner

Criminal Procedure: A reviewing court may only review an unpreserved assignment of error as one “apparent on the record” if (1) the error is of law; (2) it is not in reasonable dispute; and (3) if the error is contained in the four corners of the record such that the court need not choose between possible inferences to find it.

(Filing Date: 07-22-2015)

State v. McKee

Constitutional Law: When a property owner manifests and intention to exclude the public from private property outside the curtilage of a residence, a police officer may only enter the property with a warrant or under an exception to the warrant requirement; mere reasonable suspicion a crime is being committed is not enough.

(Filing Date: 07-22-2015)

State v. Nacoste

Evidence: A criminal Defendant may cross-examine a testifying alleged victim concerning the victim's juvenile adjudication history if used to show bias or motive in the alleged victim's reporting or to show victim's attempt to curry favor with prosecution.

(Filing Date: 07-22-2015)

Thoens v. Safeco Ins. Co. of Oregon

Civil Law: The plaintiff should be allowed the opportunity by the court to present evidence as to whether the motorist was underinsured.

(Filing Date: 07-22-2015)

Yoshida's, Inc. v. Dunn Carney Allen Higgins & Tongue LLP

Contract Law: Under ORS 36.222, email communications are confidential and protected from admission as evidence unless an exception applies. Additionally, where no material distinction is made between an equivalent Wisconsin statute, and the mediation communications arose out of a Wisconsin case, ORS 36.222 is properly applied to prevent admission of the email communications.

(Filing Date: 07-22-2015)

Dept. of Human Services v. D.M.H.

Juvenile Law: In order to establish continuing jurisdiction over the wardship of a child, the trial court asserting jurisdiction must show through facts in the record that, at the time of the hearing, the child's circumstances and conditions give rise to a current and continuing threat of harm.

(Filing Date: 07-15-2015)

Estate of Michelle Schwartz v. Phillip Morris USA, Inc.

Remedies: The United States Supreme Court has identified three guideposts to determine whether a punitive damages award violates due process: (1) the degree of reprehensibility of the defendant’s action; (2) the disparity between the actual harm caused by the conduct and the punitive damages award; and (3) the difference between the punitive damages award and the civil and/or criminal penalties authorized or imposed in comparable cases.

(Filing Date: 07-15-2015)

Fine and Fine

Family Law: The trial court has discretion in determining what property division is "just and proper in all circumstances," unless the trial court has "misapplied the statutory and equitable considerations that ORS 107.105(1)(f) requires."

(Filing Date: 07-15-2015)

Southcentral Association of Neighbors v. City of Salem

Land Use: Adjacent parcels under common ownership are not necessarily one development, and therefore one "lot," simply because they are owned by the same entity for the purposes of applying Salem Revised Code 130.270.

(Filing Date: 07-15-2015)

State v. Brown

Attorney Fees: A trial court’s judgment assessing fees for court-appointed attorney services must be supported with evidence in the record that the defendant “is or may be” able to pay the fees.

(Filing Date: 07-15-2015)

Dept. of Human Services v. B. M. C.

Juvenile Law: In a dependency proceeding, where DHS is dismissed as a party through a guardianship judgment, DHS may not move to set aside that agreement because they lack standing to do so.

(Filing Date: 07-08-2015)

Dept. of Human Services v. K. L.

Juvenile Law: ORS 419B.823 and 419B.824 are modeled after ORCP 7 D, and require that parties to a dependency proceeding receive notice reasonably calculated under the factual circumstances to apprise them of the action and afford the opportunity to present objections.

(Filing Date: 07-08-2015)

Edwards v. Board of Parole

Criminal Law: Under ORS 144.125(3), Parole Board may delay a prisoner's release date upon a finding that a prisoner has a "present severe emotional disturbance," even if the statutorily required psychological evaluation found to the contrary, so long as the Board's decision was based on substantial evidence in the report.

(Filing Date: 07-08-2015)

Johnson & Lechman-Su, PC v. Sternberg

Civil Procedure: Issue preclusion may not be used against a party in a current proceeding where the issue was not fully litigated due to the prior case being reversed and remanded on appeal.

(Filing Date: 07-08-2015)

Rivas v. Board of Parole

Parole and Post-Prison Supervision: A constitutionally adequate parole-exit interview conducted pursuant to ORS 144.125(3) does not include the right to call witnesses or cross-examine people who provided information to the board to be constitutionally adequate.

(Filing Date: 07-08-2015)

Sanchez v. State of Oregon

Post-Conviction Relief: In a petition for post-conviction relief, a trial court has broad discretion in its control of court proceedings. Abuse of this discretion can only be found in instances where the control of the court proceedings was deemed to have been applied in a manner which prejudiced the petitioner.

(Filing Date: 07-08-2015)

Sather v. SAIF

Workers Compensation: The Workers' Compensation Board must determine whether an otherwise compensable injury, not the accepted conditions, has ceased to be the major contributing cause of the worker's disability or need for treatment for an accepted combined condition.

(Filing Date: 07-08-2015)

State v. Booth

Evidence: Evidence obtained during an unlawfully extended traffic stop is inadmissible.

(Filing Date: 07-08-2015)

State v. Holland

Criminal Law: Under Article I, section 9 of the Oregon Constitution, police searches of peer-to-peer file sharing sites is not an illegal search and does not violate a defendant's rights.

(Filing Date: 07-08-2015)

State v. McNally

Criminal Procedure: Jury instructions are to be granted if there is a evidence to support it and if the proposed instruction accurately states the law.

(Filing Date: 07-08-2015)

State v. S.A.N.

Civil Commitment: Under ORS 426.005(1)(e), where the State failed to prove by clear and convincing evidence that a person is dangerous to others due to a mental disorder, a judgment of involuntary commitment must be reversed.

(Filing Date: 07-08-2015)

State v. Dentel

Appellate Procedure: For there to be plain error on the record,the error must be (1) one of law; (2) obvious and not reasonably in dispute; and (3) revealed on the face of the record, so that the court does not need to go outside the record to find error, and the facts constituting the error are irrefutable.

(Filing Date: 07-02-2015)

Abraham v. Board of Parole

Administrative Law: Under ORS 144.335(1), when a person aggrieved by a board order fails to timely seek judicial review of the order, and subsequently seeks reconsideration, any denial of review is not a final order for the purpose of judicial review.

(Filing Date: 07-01-2015)

Dept. of Human Services v. D.L.O.

Juvenile Law: A six-month time lapse between evidentiary proceedings and a judgment asserting jurisdiction over juveniles may raise a question of fact sufficient to show that,at the time of the judgment, the children's welfare may not be endangered by their conditions and circumstances.

(Filing Date: 07-01-2015)

Dept. of Human Services v. D.L.O.

Juvenile Law: A six-month time lapse between evidentiary proceedings and a judgment asserting jurisdiction over juveniles may raise a question of fact sufficient to show that,at the time of the judgment, the children's welfare may not be endangered by their conditions and circumstances.

(Filing Date: 07-01-2015)

Hucke v. BAC Home Loans Servicing, L.P.

Property Law: Under ORS 86.722, a correction deed that sets aside a trustee's deed is meant to serve as a step in unwinding a foreclosure sale, and does not unilaterally reverse the sale. Transfers of promissory notes do not have to be recorded before nonjudicial foreclosure sales can proceed.

(Filing Date: 07-01-2015)

Lewis v. Board of Parole

Administrative Law: Under ORS 144.335(1), an agency's denial of a petition for reconsideration of a final order is not itself a final order for purposes of judicial review.

(Filing Date: 07-01-2015)

Maney v. Board of Parole

Constitutional Law: The process for a murder review hearing by the Board of Parole under ORS 163.105 satisfies the Fourteenth Amendment Due Process Clause.

(Filing Date: 07-01-2015)

State v. Burt

Sentencing: Where a trial court sentences a defendant to a certain number of months in prison and a certain number of months of post-prison supervision, but gives credit for "time actually served," that sentence is unlawfully indeterminate for failure to state the length of the incarceration and the post-prison supervision.

(Filing Date: 07-01-2015)

State v. Carter

Sentencing: If a trial court's sentence exceeds the statutory maximum sentence, the Court of Appeals may exercise its discretion to remand for resentencing if the record does not indicate that the trial court will, for certain, impose the same sentence.

(Filing Date: 07-01-2015)

State v. Garcia

Attorney Fees: A criminal defendant may not be ordered to pay court-appointed attorney fees absent a determination that the defendant has the ability to pay them.

(Filing Date: 07-01-2015)

State v. McHenry

Criminal Law: To support probable cause for entering a house without a warrant, the officer must have some evidence that it is more likely than not that a crime has been committed. In the context of furnishing alcohol to minors, the officer must know more than the facts that there is a party and minors have alcohol in order to have probable cause to enter a house.

(Filing Date: 07-01-2015)

State v. Nickerson

Criminal Law: A mere discussion of Defendant's ability to have a job is insufficient to conclude Defendant's ability to pay court-appointed attorney fees.

(Filing Date: 07-01-2015)

State v. Spencer

Criminal Law: A conviction under ORS 166.610 and ORS 161.270 for felon in possession of a firearm with a firearm may not be sustained if the defendant's felony has been reduced to a misdemeanor at the time of the conviction under ORS 166.610 and ORS 161.270.

(Filing Date: 07-01-2015)

Stewart Title Guaranty Co. v. DCBS

Civil Procedure: Under Oregon common law, issue preclusion applies where an issue of ultimate fact essential to the decision arises in a subsequent proceeding that was determined by a valid and final judgment in a prior proceeding between the same parties.

(Filing Date: 07-01-2015)

Department of Human Services v. M. A. H.

Juvenile Law: Under ORS 419B.100(1)(c), dependency jurisdiction is only granted when there is a current threat of serious loss or injury to the child at the time of the jurisdiction hearing.

(Filing Date: 06-24-2015)

Dosanjh v. Namaste Indian Restaurant, LLC

Civil Procedure: Parties in civil actions are entitled to a jury instruction on their theory of the case if the requested instruction correctly states the law, is based on the pleadings, and is supported by the evidence. An error at the trial court is only grounds for reversal if it substantially affects the rights of a party such that when the instruction is considered in the totality of the evidence and the parties’ theories of the case, there is some likelihood that the jury reached a legally erroneous result.

(Filing Date: 06-24-2015)

Hadley v. Extreme Technologies, Inc.

Contract Law: Ambiguities in contract provisions are questions of law, and the trial court erred in this breach of contract case when it instructed the jury that it was the jury's job to determine the meaning of an ambiguous contract provision.

(Filing Date: 06-24-2015)

Miller v. Shenk

Land Use: Under 28.110, all necessary parties must be joined to an action both to protect interested parties and the certainty of the judgment.

(Filing Date: 06-24-2015)

State v. Hayes

Evidence: A facts-based argument is not grounds for reversal because when there is evidence from which the facts could be decided in more than one way, the Court is required to presume that the trial court decided the facts in a manner consistent with its ultimate conclusion.

(Filing Date: 06-24-2015)

State v. Ragibov

Evidence: Under OEC 803(4), hearsay statements contained in medical records are admissible in court to prove the truth of the matter asserted if three requirements are met: (1) the statement must be made for the purpose of medical diagnosis or treatment; (2) the statement must describe medical history, symptoms, pain or sensations, or the cause or eternal source of the injury; and (3) the statement must be reasonably pertinent to diagnosis or treatment.

(Filing Date: 06-24-2015)

U.S. Bank v. Pohrman

Workers Compensation: To determine whether an employee's injury sustained during a paid break is compensable, the Worker's Compensation Board must first determine whether the employee was injured during the scope of employment, and then must determine whether employee was on a "personal mission" or if the personal comfort doctrine applies.

(Filing Date: 06-24-2015)

Dept. of Human Services v. M.E.M.

Juvenile Law: A trial court errs by entering a default judgment against a mother in a juvenile dependency case when that mother fails to appear in person at the dependency hearing but appears over the phone.

(Filing Date: 06-17-2015)

Fossen v. Clackamas County

Tort Law: When a plaintiff brings claims of false arrest and false imprisonment, the false imprisonment claim will not be dismissed along with the false arrest claim where the false imprisonment claim arises after a valid arrest.

(Filing Date: 06-17-2015)

McManus v. Auchincloss

Employment Law: The public policy underlying ORS 659.550 is "to encourage all employees with a good-faith belief that their employer had committed a crime involving child abuse to report that belief to law enforcement," even if the employee is not required by law to report such information.

(Filing Date: 06-17-2015)

Mitchell and Mitchell

Family Law: Lower court in marriage dissolution hearing abused its discretion by not considering Husband's agreement to pay for children's college education when awarding monthly spousal maintenance, and by not providing an explanation for the chosen amount of required life insurance policy.

(Filing Date: 06-17-2015)

Moyer and Moyer

Family Law: A life insurance obligation must be commensurate with the support award it secures, and so when the support award is reduced or eliminated the life insurance obligation must be appropriately adjusted.

(Filing Date: 06-17-2015)

Mullen v. Meredith Corp.

Tort Law: Oregon's Anti-SLAPP statute, ORS 31.150, gives defendants ground to strike a civil claim when their conduct was in furtherance of the exercise of the constitutional right of free speech in connection with a public issue or issue of public interest, even if that conduct is not necessary to the exercise of free speech.

(Filing Date: 06-17-2015)

Myers v. Brockamp

Post-Conviction Relief: Under ORS 138.640(1), to be legally sufficient, a judgment denying post-conviction relief must, at a minimum, follow the three-prong test elicited in Datt v. Hill, 347 Or 672, 676 (2010) with respect to each claim. Failure to do so compels a remand without reaching the merits of petitioner's claim for relief.

(Filing Date: 06-17-2015)

State v. Anton

Criminal Procedure: Evidence is properly suppressed when it is obtained through an unlawful seizure. A seizure occurs when an officer announces that a defendant's fishing tags will be inspected, that seizure is unlawful if it is not supported by reasonable suspicion.

(Filing Date: 06-17-2015)

State v. Bradford

Criminal Law: When a defendant raises self-defense at a trial alleging assault and harassment, it is improper to give the jury a defense of premises instruction.

(Filing Date: 06-17-2015)

State v. Davidson

Sentencing: Two consecutive, presumptive "true life" sentences imposed under ORS 137.719(1) against a recidivist defendant violates Article I, Section 16 of the Oregon Constitution, when that defendant has five convictions of public indecency for public masturbation without any sexually violent behavior or conduct.

(Filing Date: 06-17-2015)

State v. Ene

Criminal Procedure: Evidence is properly suppressed when it is obtained through an unlawful seizure. A seizure occurs when an officer announces that a defendant's fishing tags will be inspected, that seizure is unlawful if it is not supported by reasonable suspicion.

(Filing Date: 06-17-2015)

State v. Lamoreaux

Criminal Law: Under Article 9 Section 1 of the Oregon State Constitution, the scope of a lawful, consented to search is determined by examining two factors; (1) the specific words used by the officer in requesting the search, and (2) whether a reasonable person in Defendant’s shoes would have understood that the officer intended to search for specific items. The second factor is satisfied when the officer is aware that Defendant is on probation and Defendant knows that items related to same crime as on probation for will turn up in a search.

(Filing Date: 06-17-2015)

State v. lopez-lopez

Evidence: Under Article I, section 9, of the Oregon Constitution subjecting a person to a breath test is a search and seizure that requires a warrant or an exception. Consent is an exception. In assessing voluntariness, you examine the totality of the circumstances to determine if a defendant’s consent was the of the defendant’s free will or was the result of express or implied coercion.

(Filing Date: 06-17-2015)

State v. Paskar

Constitutional Law: It is a violation of Article I section 9 of the Oregon Constitution to obtain evidence through the exploitation of an unlawful search. Additionally, reasonable suspicion in regards to one crime does not provide officers with an excuse to extend a stop and conduct an investigation into a separate crime.

(Filing Date: 06-17-2015)

State v. Rhee

Criminal Law: Under Oregon’s merger statute, ORS 161.067(1), in order to determine whether statutory provisions require “proof of an element that the others do not,” a court should examine only the statutory elements of each offense, not the factual circumstances alleged in the indictment. When a statute contains alternative forms of a single crime, a court should look to the indictment to determine which form is charged for merger analysis.

(Filing Date: 06-17-2015)

State v. Trujillo

Evidence: Expert testimony that "retrograde extrapolation" is a practice that is accepted in the field of forensic science is sufficient to admit evidence of "retrograde extrapolation" in DUII cases.

(Filing Date: 06-17-2015)

Delta Property Co., LLC v. Lane County

Land Use: Under ORS 197.829, the Land Use Appeals Board must give deference to a county’s plausible interpretation of its land use code, and must consider whether any exceptions may apply.

(Filing Date: 06-10-2015)

Hamlin v. Hamlin

Trusts and Estates: A trial court may use extrinsic evidence when reforming a decedent’s will when both parties seek reformation before the court, and each party offers a different intention for the will’s reformation.

(Filing Date: 06-10-2015)

Ray Klein, Inc. v. Wader

Civil Procedure: When a trial court dismisses a claim upon a plaintiff's request, the defendant has a right to continue with a counterclaim under ORCP 54A(2). If the trial court has the discretion to dismiss the counterclaim as well, it must create a sufficient record to reflect its discretionary decision.

(Filing Date: 06-10-2015)

S. St. Helens, LLC v. City of St. Helens

Land Use: Under ORS 197.835(9)(a)(C), LUBA may only reverse a local government’s land use decision if the decision was based on facts that are not supported by substantial evidence in the whole record. If a reasonable person could make the disputed finding based on the entirety of the record, it is supported by substantial evidence.

(Filing Date: 06-10-2015)

State v. Hunt

Constitutional Law: When at an arraignment where the court has impermissibly adjudged a defendant's waiver of counsel, in which the defendant proceeds into a community service program under terms that she does not fully comprehend, the error is not harmless and a new arraignment must be provided for the defendant with the community service option still available to her.

(Filing Date: 06-10-2015)

State v. Johnson

Criminal Law: Trial court ordering payment of court-appointed attorney fees without determining Defendant's ability to pay such fees was plain error.

(Filing Date: 06-10-2015)

State v. Kimmons

Criminal Procedure: Pursuant to Rodgers/Kirkeby, “a stop is unlawfully extended, effectuating an unconstitutional seizure, where 'an officer, without letting the person know expressly or by implication that he or she is free to leave, detains the person beyond the time reasonably required to investigate the initial basis for the stop and to issue a citation, without the requisite reasonable suspicion.'”

(Filing Date: 06-10-2015)

State v. Price

Criminal Procedure: Under ORS 137.106(5), a judge must grant a restitution hearing if the "defendant objects to the imposition, amount or distribution of the restitution."

(Filing Date: 06-10-2015)

State v. R.D.S.

Civil Commitment: A trial court in a civil commitment proceeding must advise the allegedly mentally ill person directly regarding the rights guaranteed by ORS 4216.100. When the court fails to do this, it is plain error and the Court can hear the issue despite a failure to preserve.

(Filing Date: 06-10-2015)

State v. Vargas

Criminal Law: Under ORS 138.222(2)(a), the appellate court is only precluded from reviewing challenges to convictions that address the length of the sentence when the sentence is within its presumptive range.

(Filing Date: 06-10-2015)

State v. Williams

Criminal Law: Trial court plainly erred when it failed to determine whether Defendant was capable of paying attorney's fees before imposing fees.

(Filing Date: 06-10-2015)

Tseng v. Tseng

Trusts and Estates: Under ORS 130.710(1), after a settlor’s death, a trustee of a revocable trust must provide information about the administration of the trust during the settlor’s lifetime to qualified beneficiaries of the trust such that those beneficiaries have the material facts necessary to protect their interests.

(Filing Date: 06-10-2015)

Barbera v. State of Oregon

Post-Conviction Relief: Misrepresentation by an attorney regarding post-conviction time-lines does not allow for an excuse in timely filing of petitions for post-conviction relief. Moreover, petitions for post-conviction relief do not require a notary signature.

(Filing Date: 06-03-2015)

Bova v. City of Medford

Municipal Law: Under ORS 243.303(2), local governments are obligated to provide some health insurance to both current and retired employees, but may be relieved from such obligation to retired employees if the local government can show that providing healthcare insurance is unduly burdensome to the city because of cost or other circumstances.

(Filing Date: 06-03-2015)

Doyle v. City of Medford

Municipal Law: ORS 243.303(2) does not create a tort-based private right of action, but an adversely-affected retired local government employee may seek remedy through the Declaratory Judgments Act, as well as supplemental relief including economic damages for the cost of obtaining substitute health insurance.

(Filing Date: 06-03-2015)

Gram and Gram

Civil Procedure: On a motion to clarify a dissolution judgment, a trial court is permitted to interpret ambiguous portions of a dissolution judgment. A provision in a judgment is ambiguous if it is capable of more than one reasonable interpretation. A trial court may not modify the property provisions of the judgment under the guise of interpreting them. A trial court will have modified the judgment if additional terms or obligations are added.

(Filing Date: 06-03-2015)

Haynes v. Board of Parole

Administrative Law: ORS 183.400 authorizes only facial challenges to agency rules, and does not allow constitutional challenges in particular circumstances.

(Filing Date: 06-03-2015)

Johnson v. Premo

Appellate Procedure: A party to a judgment by the Court of Appeals may petition to modify the written opinion to correct factual errors. If the petition is correct, the Court may allow the modification.

(Filing Date: 06-03-2015)

K.M.V. v. Williams

Civil Stalking Protective Order: Under ORS 30.866, issuance of a stalking protective order requires at least two contacts that cause both subjective and objective reasonable alarm or coercion that occur within two years of filing the petition for the order.

(Filing Date: 06-03-2015)

Kiltow v. SAIF

Workers Compensation: A decision by the Workers' Compensation Appellate Review Unit that an insurer prematurely closed a claim does not have a preclusive effect on the Court of Appeals or the Workers' Compensation Board. Furthermore, an insurer does not act unlawfully by removing a condition from a claim if it is determined that the condition was never part of the compensable injury.

(Filing Date: 06-03-2015)

Lunsford v. NCH Corporation

Elder Law: ORS 30.905(3)(b) does not violate the remedy clause because wrongful death actions were not recognized by the common law in 1875.

(Filing Date: 06-03-2015)

McKeachie v. Coursey

Post-Conviction Relief: Under 138.640, a judgment granting or denying post-conviction relief must contain (1) identification of claims for relief the court considered and separate rulings on each claim; (2) declaration for each claim whether denial is based on petitioner's failure to utilize or follow available state procedures or failure to establish merits of his claim; and (3) apparent legal bases for denial of relief.

(Filing Date: 06-03-2015)

Piazza v. Kellim

Tort Law: Under Oregon tort law, a plaintiff must plead and prove foreseeability of harm from third-party criminal action by showing (1) the defendant’s conduct caused a foreseeable risk; (2) the risk was to an interest of a kind that the law protects against negligent invasion; (3) the defendant’s conduct was unreasonable considering the risk; (4) the conduct caused the plaintiff’s harm; and (5) the plaintiff was within the class of persons and the harm was within the general type of potential injuries that made the defendant’s conduct negligent.

(Filing Date: 06-03-2015)

State v. Battles

Attorney Fees: A trial court may reinstate an award of attorney fees following remand from an appeal, where Defendant did not contest them in the original appeal and offered no evidence the original award of the fees was plain error.

(Filing Date: 06-03-2015)

State v. Gibbons

Criminal Procedure: Under Article I, Section 20 of the Oregon Constitution, a police officer's decision to randomly "run" the plates of a car is constitutional if that officer's decision resulted from a confluence of training, time, and opportunity, and that officer would have "run" the plates from any other passing driver.

(Filing Date: 06-03-2015)

State v. Heater

Criminal Law: Analysis for admissibility of evidence obtained after illegal police activity has been extended by recent decisions to include not only temporal proximity and mitigating circumstances, but also an analysis of the totality of the circumstances, including the nature of the illegal conduct and its purpose and flagrancy.

(Filing Date: 06-03-2015)

State v. Love

Criminal Law: Under the statute governing disorderly conduct, ORS 166.025, "public" refers to something that affects "the people as an organized community" or "the people as a whole," not a "public place."

(Filing Date: 06-03-2015)

State v. M.S.P.

Civil Commitment: Under ORS 426.130, when the evidence is legally insufficient that a person is a danger to himself, he may not be committed as a person with mental illness.

(Filing Date: 06-03-2015)

State v. McRae

Evidence: Trial court's denial to admit evidence of police officer's prior inconsistent statement not a grave enough error to warrant reversal of judgement if the difference in statements is not "qualitatively different" enough to warrant reversal.

(Filing Date: 06-03-2015)

State v. Navickas

Criminal Law: Evaluating a “lawful order” pertaining to ORS 162.247(1)(b) should be done independently of the circumstances giving rise to the order given. The standard is whether a rational trier of fact could find that the order was given by one who had the authority to give such order and the lawfulness of said order could be found in substantive law.

(Filing Date: 06-03-2015)

State v. Velazquez-Valleo

Attorney Fees: A judgment ordering a defendant to pay attorney fees may be reversed on appeal where circumstances of the defendant's case render him or her unable to pay court-ordered attorney fees, even if the error was unpreserved below.

(Filing Date: 06-03-2015)

State v. Williams

Criminal Law: Whether an encounter between a citizen and an officer qualifies as a stop is an issue of fact, determined by the totality of the circumstances. A citizen-officer encounter constitutes a stop when the officer’s words and/or actions would cause a reasonable person to believe that he is not free to end the encounter or go about his daily affairs until the officer indicates he is free to do so or issues a citation.

(Filing Date: 06-03-2015)

Corkum v. Bi-Mart Corp.

Employment Law: Under ORS 656.005(24)(c), a condition renders the worker more susceptible to an injury when it is a passive contribution (e.g. age, gender, weight) which does not have its own independent, active pathological impact on the body part.

(Filing Date: 05-28-2015)

State v. Helms

Criminal Law: Trial court plainly erred when it assigned attorney fees to the Defendant without determining whether Defendant was able to pay those fees.

(Filing Date: 05-28-2015)

State v. Luster

Criminal Law: ORS 475.319(1) states, in relevant part, that a defendant may raise an affirmative defense to the criminal possession of marijuana if they have been diagnosed with a debilitating medical condition within 12 months of their arrest, and have been advised by the person’s attending physician that the medical use of marijuana may mitigate the symptoms.

(Filing Date: 05-28-2015)

State v. McHaffie

Criminal Procedure: Consideration of all the circumstances together can create sufficient specific and articulable facts for an officer to have had reasonable suspicion to make a lawful stop.

(Filing Date: 05-28-2015)

Sternberg v. Lechman-Su

Tort Law: A claim for professional negligence may not be dismissed as time-barred where a question of fact remains regarding whether the claim accrued within the time allowed under the statute of limitations.

(Filing Date: 05-28-2015)

Weiker v. Douglas County School Dist. No. 4

Workers Compensation: Under ORS 656.245(1)(a), medical treatment is only compensable when its purpose is to cure a condition caused in material part by a previously accepted, compensable condition.

(Filing Date: 05-28-2015)

American Civil Liberties Union v. City of Eugene

Administrative Law: Under ORS 181.854(4) of the Oregon Public Records Law, records of an internal investigation of a police officer's conduct are generally protected from disclosure if that investigation does not result in discipline. A trial court properly denies such requests when it properly balances the competing interests of the public and the public office by favorably presuming disclosure is required.

(Filing Date: 05-20-2015)

Department of Human Service v. A. B.

Juvenile Law: Under ORS 419B.100(1)(c), the Court must analyze the totality of the child’s circumstances, including whether she is being cared for by someone other than the parents. DHS must prove a nexus between the parents’ risky conduct and risk of harm to the child when the child is in the care of another in order to exercise jurisdiction over the child.

(Filing Date: 05-20-2015)

Johnson v. Johnson

Civil Procedure: UNDER UTCR 7.020(3), a trial court cannot dismiss an action due to the plaintiff not filing a proposed order for want of prosecution, because no UTCR requires a proposed order be filed.

(Filing Date: 05-20-2015)

State v. Barnthouse

Constitutional Law: Article I, Section 9 of the Oregon Constitution, the state may not use evidence obtained as a result of an unlawful seizure. An unlawful seizure occurs when there is a significant interference with an individual's possessory interest that is not authorized by warrant or justified by an exception.

(Filing Date: 05-20-2015)

State v. Bautista

Evidence: Under OEC 801(4)(a)(B), it is not an exception to hearsay if the motive to fabricate testimony arose before the prior consistent statement was made.

(Filing Date: 05-20-2015)

State v. Cervantes

Criminal Procedure: Testimony cannot be preemptively denied on the sole basis that it may be inadmissible before the trier of fact unless exceptional circumstances arise which would allow for such preemption to occur.

(Filing Date: 05-20-2015)

State v. Crisafi

Criminal Law: Under ORS 813.215(h), the exception to diversion is valid even if the accused is ineligible for the commercial driver license he or she already has been granted.

(Filing Date: 05-20-2015)

State v. Hunt

Criminal Law: An appellate court may reverse judgment requiring defendant to pay attorney's fees if the trial court erred in its assessment of defendant's ability to pay those fees.

(Filing Date: 05-20-2015)

State v. Johnson

Criminal Law: A criminal defendant may appeal a judgment of conviction based on the sentence for a felony on showing of claim of error if probation was revoked.

(Filing Date: 05-20-2015)

State v. Makin

Criminal Law: ORS 163.547 does not require proof of presence of children in a vehicle during a specific sale of controlled substances. Defendants have a waiveable pre-trial right to argue improper venue, which is not waived if defendant filed his opening brief before Mills was decided.

(Filing Date: 05-20-2015)

State v. Munoz-Juarez

Sentencing: Under ORS 167.067(1) and (2), where a defendant violates multiple statutory provisions or violates one statutory provision but involves multiple victims, there are separately punishable offenses.

(Filing Date: 05-20-2015)

State v. Taylor

Criminal Law: Under ORS 164.205(2), a “dwelling” is any roofed structure that is mostly enclosed by walls and is regularly or intermittently inhabited by a person who resides in the building at night. Entry into such a building qualifies as entry into a dwelling for purposes of the crime of burglary under ORS 164.225.

(Filing Date: 05-20-2015)

Altenhofen and Vanden-Busch

Family Law: Defendant may be held in contempt for failure to pay child support if able to afford a portion of the ordered amount but fails to pay.

(Filing Date: 05-13-2015)

Cirina and Cirina

Family Law: When dividing property in a divorce proceeding, marital debts are divided evenly between the two parties.

(Filing Date: 05-13-2015)

Dept. of Human Services v. R.K.

Family Law: Under ORS 419B.500 and 419B.504, to terminate parental rights a court must find (1) the parent has engaged in conduct or is characterized by a condition that is seriously detrimental to the child, (2) integration of the child into the parent's care is improbable within a reasonable time, and (3) termination is in the best interests of the child. To determine a “serious condition” the court must focus on the detrimental effects of the parent’s conduct or condition and not just the seriousness of the parents conduct. It is child specific.

(Filing Date: 05-13-2015)

English v. Liberty Northwest Ins. Corp.

Workers Compensation: Under ORS 656.005(7)(a)(A), the compensability of a consequential condition depends on its relationship to the compensable injury, which must be its major contributing cause, and not on the “accepted conditions” from the original injury.

(Filing Date: 05-13-2015)

F. C. L. v. Agustin

Constitutional Law: The Fourteenth Amendment's right to due process gives defendants protection from overly coercive statements from the trial court about the risks of giving false testimony.

(Filing Date: 05-13-2015)

Knappenberger v. Davis-Stanton

Civil Law: ORS 12.150 tolls the statute of limitations for defendants who cannot be served with process in state, and does not implicate the Commerce Clause when a defendant moves out of state for non-commercial reasons.

(Filing Date: 05-13-2015)

Madrone and Madrone

Family Law: ORS 109.243 applies to unmarried same-sex couples who have a child through artificial insemination if the partner of the biological parent consented to the insemination and the couple would have chosen to marry had that choice been available to them.

(Filing Date: 05-13-2015)

Neidhart v. Page

Landlord Tenant: Defendant's petition for reconsideration was granted and resulted in the correction of a misstatement of the trial court's award. Nevertheless, Defendant's argument was rejected for being insufficiently developed for review.

(Filing Date: 05-13-2015)

Nordbye v. BRCP/GM Ellington

Civil Procedure: In an action for declaratory relief for an owner's violation of restrictions in a declaration resulting from participation in the federal Low-Income Housing Tax Credit Program, a plaintiff's claim becomes moot where the plaintiff is no longer a qualified low-income tenant.

(Filing Date: 05-13-2015)

SAIF v. DeMarco

Workers Compensation: Under ORS 656.005(7)(a)(A), a new/omitted condition is compensable if the major contributing cause of that consequential condition is a compensable injury.

(Filing Date: 05-13-2015)

SAIF v. Durant

Workers Compensation: Under ORS 656.005(7)(a), a determination that a workplace injury is a consequential condition does not violate the Last Injurious Exposure Rule if the prior condition was determined both compensable and the major contributing cause of the current condition.

(Filing Date: 05-13-2015)

State v. Barker

Criminal Law: Under Article I, section 9 of the Oregon Constitution, a warrantless search must be supported by probable cause, which is comprised of two components: the subjective believe of the officer that a crime was committed, and that belief must be objectively reasonable under the circumstances.

(Filing Date: 05-13-2015)

State v. Combest

Criminal Law: Police department's investigation of criminal activity on a public file sharing network not considered a "search" which would trigger a privacy interest on the behalf of a user of the network.

(Filing Date: 05-13-2015)

State v. Craine

Evidence: Under OEC 401, evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probably or less probable than without the evidence. Curative admissibility doctrine provides that when one party offers inadmissible evidence, which is received, the opponent may then offer similar facts whose only claim to admission is that they negate or explain the prior inadmissible evidence.

(Filing Date: 05-13-2015)

State v. Epps

Sentencing: Under ORS 813.011, a defendant convicted of DUII who has been previously convicted of DUII at least twice in the prior 10 years may not have a suspended or reduced sentence from the mandatory 90-day incarceration.

(Filing Date: 05-13-2015)

State v. Jaimes-Pineda

Criminal Procedure: Under OEC 401, a trail court may exercise its discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of confusing the jury or complicating the trial. Appellate courts review a trial court’s decision to exclude evidence for abuse of discretion.

(Filing Date: 05-13-2015)

State v. Kim

Constitutional Law: Under Article I, Section 11 of the Oregon Constitution, the right to effective counsel at a criminal trial may only be waived if the record reflects that the defendant “voluntarily and intelligently” waived his right to an attorney.

(Filing Date: 05-13-2015)

State v. Ross

Criminal Law: The Court may exercise plain error review of unpreserved issues on appeal when they are errors of law, which are not reasonably in dispute, and the error is apparent in the record. The Court may decline to use its discretion to review plain errors when the errors were harmless.

(Filing Date: 05-13-2015)

Vukanovich v. Kine

Appellate Procedure: When the trial court grants JNOV, the proper procedural course, if the appellate court reverses the JNOV, is to remand to the trail court to determine whether there is additional evidence to support the alleged claim.

(Filing Date: 05-13-2015)

Vukasin v. Liberty Northwest Insurance Corporation

Workers Compensation: ORS 656.245(1)(a) allows compensation for medical services that are causally related to a compensable workplace injury. This does not include services for accepted conditions that can be shown to have been resolved or cured and occurred again later, unrelated to a workplace injury.

(Filing Date: 05-13-2015)

Bernard v. S.B., Inc.

Contract Law: Under ORS 653.295(1)(a)(A), a noncompetition agreement that is not presented to an employee at least two weeks prior to the start of employment is voidable, and may be enforced by a court unless a party takes steps to void the agreement.

(Filing Date: 05-06-2015)

DeHarpport v. W.E.J.

Civil Procedure: Under ORS 124.005 et seq., whether a defendant had probable cause to initiate a proceeding is a question for a court only if the facts are undisputed.

(Filing Date: 05-06-2015)

Dept. of Human Services v. A.S.-M.

Juvenile Law: In a hearing for the termination of parental rights, a guardian ad litem deemed to have been inappropriately appointed for a parent deprives the parent of the opportunity to be heard at a meaningful time and in a meaningful manner. This runs afoul of the Fourteenth Amendment of the US Constitution and creates a fundamentally unfair proceeding, despite any evidence tending to show the unfitness of the parent.

(Filing Date: 05-06-2015)

Eicks v. Teacher Standards and Practices Commission

Administrative Law: Under ORS 342.175(1)(b) and OAR 584-020-0035(3)(a), an application for a school counseling and psychologist license may only be denied for “gross neglect of duty” when there is a nexus between the applicant's questioned conduct and professional responsibilities.

(Filing Date: 05-06-2015)

State v. Ardizzone

Criminal Law: Under OEC 404(3), a trial court does not abuse its discretion by admitting evidence of past criminal convictions offered to prove a criminal defendant's intent, so long as the trial court properly balances the relevance and prejudicial impact of the evidence.

(Filing Date: 05-06-2015)

State v. Brock

Evidence: The “automobile exception” allows an officers to conduct a warrantless search of a vehicle provided that the vehicle is (1) mobile at the time it is first encountered by police and (2) there is probable cause for the search. Probable cause to search a vehicle is based on an officer's subjective belief that evidence of the crime exists, and that belief must also be objectively reasonable under the circumstances.

(Filing Date: 05-06-2015)

State v. Shapiro

Criminal Law: Under ORS 164.215 and ORS 164.043, an emergency room waiting area is not considered "open to the public" if a security guard is present.

(Filing Date: 05-06-2015)

State v. Williams

Criminal Law: In determining the validity of a search warrant on appeal, a court may only consider the facts alleged in the affidavit in support of the warrant. The alleged facts must establish a probability that it is more likely than not evidence will be found at the place to be searched.

(Filing Date: 05-06-2015)

Stevenson v. Board of Parole

Parole and Post-Prison Supervision: Mastriano v. Board of Parole held that an order which denies the review or reconsideration of a previous order is not considered a final order subject to judicial review. Additionally, a petition which is substantively different, but, in effect, duplicates the request made in a previous petition that was denied, is not subject to judicial review.

(Filing Date: 05-06-2015)

Gibson v. Morris

Tort Law: The Court of Appeals will not overturn a trial court's finding of fact regarding what a party knew or should have known unless, as a matter of law, there is only a single possible conclusion on the evidence and the trial court did not reach it.

(Filing Date: 04-29-2015)

Hendrickson Trucking, Inc. v. ODOT

Administrative Law: Under OAR 137-003-0528, if an issue of fact is in dispute, ODOT must provide a hearing to determine whether good cause exists for a late petition for reassessment of road-use taxes.

(Filing Date: 04-29-2015)

Murphy v. Oregon Medical Board

Administrative Law: Petitioner was not given adequate notice of the allegations against him when the complaint failed to specify which specific part of the statute the board alleged he violated. Petitioner was prejudiced when the board based its final order on two theories not argued at the contested case hearing.

(Filing Date: 04-29-2015)

State v. Clink

Criminal Procedure: The protections of Article I, sec. 9 of the Oregon Constitution against unreasonable seizures can be overcome by an officer's reasonable suspicion based on the totality of the circumstances.

(Filing Date: 04-29-2015)

State v. G. A. K.

Civil Commitment: Evidence was insufficient to support involuntary commitment where the State failed to prove by clear and convincing evidence that appellant was unable to provide for her basic needs due to a mental disorder.

(Filing Date: 04-29-2015)

State v. Heyne / Yunke

Evidence: In providing a search warrant, a reasonable magistrate may believe that marijuana and marijuana-related items will be found at a defendant’s residence when the defendant lists the residence on an expired medical-marijuana card after he is pulled over and found to possess a large amount of marijuana without proof of a current medical-marijuana card.

(Filing Date: 04-29-2015)

Ajir v. Buell

Insurance Law: Under ORS 278.215(2), a self-insured public body is obligated to provide the UM/UIM coverage according to ORS 742.500 to ORS 742.504 unless there is a signed, written election that lowers the limit.

(Filing Date: 04-22-2015)

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

Juvenile Law: Under ORS 419B.504, when a parent is addicted to drugs and that drug abuse is deemed to be seriously detrimental to the child, the result of continued use of drugs (even those when prescribed by doctors if obtained by “doctor shopping”) can be enough to lead a court to conclude that the conditions will not be changed in a reasonable period of time. This is especially true when the parent is considered by professionals to be in denial of their drug addiction.

(Filing Date: 04-22-2015)

Dept. of Human Services v. R.S.

Juvenile Law: Under ORS 419.476(2)(a), in order to permit a child to return to a parent's home from foster care, a juvenile court must determine that a parent has made "reasonable efforts" and "sufficient progress" in creating a safe environment for the child.

(Filing Date: 04-22-2015)

Dunn v. City of Milwaukie

Tort Law: Under Oregon's Discovery Rule and ORS 30.275, the timeline to file a claim begins as soon as a harm is cognizable, and is not tolled to the date that the full extent of the harm is recognized.

(Filing Date: 04-22-2015)

Gustafson v. Board of Accountancy

Administrative Law: Under ORS 183.650, the Board of Accountancy has the authority to modify an ALJ’s proposed order if those modifications are adequately explained.

(Filing Date: 04-22-2015)

Hicks v. Central Point School District

Municipal Law: Under ORS 279B.033, the required estimate of a potential contractor’s personnel costs is mandatory.

(Filing Date: 04-22-2015)

Hinchman v. UC Market, LLC

Civil Procedure: Where a party’s theory is susceptible to proof through expert opinion evidence based on appropriate facts, a party’s offer of an ORCP 47 E affidavit is sufficient to create a genuine issue of fact to defeat summary judgment.

(Filing Date: 04-22-2015)

State v. Black

Criminal Law: Under ORS 161.067, where one act satisfies more than one element of a single crime, a defendant’s single criminal act cannot be converted into multiple crimes.

(Filing Date: 04-22-2015)

State v. Burris

Criminal Law: Under ORS 161.067--the Anti-Merger statute, guilty verdicts do not merge if the same conduct violates two or more statutory provisions and each provision requires proof of an element the other does not.

(Filing Date: 04-22-2015)

State v. Freih

Criminal Law: Under ORS 161.200, in order for a defendant to raise the affirmative defense of "choice-of-evils" against a charge of failure to appear in court, the defendant must be under threat of imminent psychological harm on the date (or shortly after) the defendant failed to appear.

(Filing Date: 04-22-2015)

State v. Ibabao

Criminal Law: Under ORS 163.225, the asportation element of second degree kidnapping is not satisfied when the victim's movements are incidental to another crime or when moving a victim between rooms in a house, because their starting and ending locations are not qualitatively different.

(Filing Date: 04-22-2015)

State v. Munoz

Criminal Procedure: In a murder trial, a defendant is not prejudiced by a trial court’s failure to provide a concurrence instruction when two alternative factual ways of proving the “causes” element of the crime exist.

(Filing Date: 04-22-2015)

State v. Norton

Criminal Procedure: Article I, Section 9, of the Oregon Constitution protects individuals from incriminating evidence when the individual initiates the contact with the officer and the conversation morphs into a seizure, even when that evidence is given with consent.

(Filing Date: 04-22-2015)

State v. Sherman

Criminal Law: Constructive possession of a controlled substance occurs when the defendant exercises control, or has the right to exercise control, over the substance. However, merely being proximately close to the substance does not indicate constructive possession. Evidence needs to be established connecting defendant to his right to control the substance and that evidence can be circumstantial, including defendant's own statements.

(Filing Date: 04-22-2015)

Gonzalez v. Standard Tools and Equipment Co.

Tort Law: Oregon does not recognize the product line liability exception to the general rule of successor liability.

(Filing Date: 04-15-2015)

Smith v. Psychiatric Security Review Board

Administrative Law: OAR 859-050-0010 was a validly adopted administrative rule under the guiding statutes ORS 183.413 and ORS 161.346 because the rule included a non-exhaustive, incomplete list of prehearing notice requirements that did not exclude other items that may be required under other statutes.

(Filing Date: 04-15-2015)

State v. Dickens

Evidence: To establish an affirmative defense to a charge of manufacturing marijuana under ORS 465.856(1), a defendant must provide some evidence to the three specific requirements of ORS 475.319(1). Analysis of the evidence provided is to be highly deferential to the defendant.

(Filing Date: 04-15-2015)

State v. Larrance

Sentencing: Under ORS 138.083, the trial court abused its discretion when it failed to amend an entire sentence which had been determined using an erroneous understanding of the law.

(Filing Date: 04-15-2015)

State v. Maack

Criminal Law: Under ORS 137.540(2), a trial court “may impose any special conditions of probation that are reasonably related to the crime of conviction” to facilitate the probationer’s rehabilitation or for public safety. A probation condition is valid as long as it restricts a probationer's behavior “to a permissible degree” as it reasonably relates to the purposes of probation, even if an alternate, narrower version of the condition could be imposed.

(Filing Date: 04-15-2015)

State v. Martinez

Criminal Law: Under ORS 137.123(5)(a), a trial court may impose consecutive sentences for attempted aggravated murder and the aggravating crime if it can be shown that the aggravating crime was not just an incidental crime but rather an indication of a defendant’s willingness to commit more than one criminal offense.

(Filing Date: 04-15-2015)

State v. Streeter

Criminal Law: Revised statute ORS 181.812(1)(d), failure of sex offender to report a new residence within 10 days, does not require the State to prove either the exact moment the 10 days lapses or the exact location of the defendant at that time, as was required under former statute ORS 181.599(1)(d).

(Filing Date: 04-15-2015)

Teegarden v. State of Oregon

Contract Law: A settlement agreement barring a party from filing any further actions against another party does not preclude an action for intentional torts when the settlement agreement was induced with a material misrepresentation.

(Filing Date: 04-15-2015)

Turner v. Dept. of Transportation

Tort Law: Under the Oregon Tort Claims Act, the two-year statute of limitations may not begin to run until a plaintiff reasonably knows both that the governmental conduct caused harm and that the conduct was negligent or intentionally harmful. Under ORS 30.265(6)(c), governmental immunity applies only where a body or person that has responsibility or authority to exercise judgment over a public policy decision actually demonstrates that it took the action necessary to effectuate the decision, not merely weighs the costs and benefits.

(Filing Date: 04-15-2015)

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

Family Law: A no-contact order between incestuous parents in a juvenile dependency case may only prohibit sexual contact under ORS 163.525, rather than no-contact whatsoever.

(Filing Date: 04-08-2015)

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

Juvenile Law: State v. Geist, does not allow for inadequate assistance of counsel to be raised for the first time on appeal in this scenario because T. L. held that ORS 419B.923 provides other remedies to challenge the adequacy of dependency counsel.

(Filing Date: 04-08-2015)

Harkness v. Platten

Tort Law: In determining the likelihood of success in the case underlying a malpractice case: a principal (Mortgage Brokerage) is not vicariously liable for the acts of their agent for acting with apparent authority by giving financial advice and brokering hard-money loans because the principal did not take an affirmative step giving that agent the appearance of such authority solely by giving the title of "loan officer" to the agent.

(Filing Date: 04-08-2015)

Smith v. Providence Health and Services - Oregon

Civil Law: In order to survive a motion of dismissal for failure to state a claim, some semblance of a claim must be presented. A loss of chance claim fails on that notion because it cannot establish that defendant's conduct was the likely cause of plaintiff's injuries, and because Oregon does not recognize loss of chance as a cognizable theory of relief at common law.

(Filing Date: 04-08-2015)

State v. Driver

Criminal Procedure: It is a violation of the right of a criminal defendant to have a speedy trial where the State itself delayed a trial for twenty months by not providing discovery.

(Filing Date: 04-08-2015)

State v. Jones

Appellate Procedure: In order to preserve error defendant must give the judge an opportunity to adequately explain reasoning for a ruling.

(Filing Date: 04-08-2015)

State v. Logston

Criminal Law: A defendant who immediately objects to the prosecutor’s argument, but whose objection is overruled, need not engage in futile efforts to obtain a curative instruction or a mistrial.

(Filing Date: 04-08-2015)

State v. Luxford

Criminal Law: Under ORS 163.275, by forcing the victim to relinquish car keys that she had a legal interest in, defendant compelled the victim to engage in conduct from which she had a legal right to abstain.

(Filing Date: 04-08-2015)

State v. Pergande

Criminal Procedure: It is plain error for a trial court not to strike testimony of a witness that is an explicit comment on the credibility of another witness.

(Filing Date: 04-08-2015)

State v. Quigley

Criminal Procedure: In order to prevail on an argument that evidence would have been inevitably discovered, the State must show that the officer would have sought defendant’s consent to search and that she would have consented, even without an unlawful extension of the stop.

(Filing Date: 04-08-2015)

State v. Stewart

Criminal Procedure: Under the Oregon Constitution, Article VII, section 3, an appellate court is required to affirm a conviction, even if an evidentiary error occurred, if there is little possibility that the error negatively impacted the verdict. The evidence in question needs to be weighed as to whether it is “merely cumulative” or “qualitatively different” from other evidence presented in the case that led to the conviction.

(Filing Date: 04-08-2015)

Couch Investments, LLC v. Peverieri

Arbitration: An arbitrator does not exceed its authority under ORS 36.695(3) to order "just and appropriate" remedies when the arbitration agreement fails to lay out express award guidelines.

(Filing Date: 04-01-2015)

Jeld Wen, Inc. v. Cooper

Workers Compensation: Employer dismissed employees claim for workers compensation without sufficient evidence to support employers claim that the current condition of the injury could not be used as evidence to assess the original injury.

(Filing Date: 04-01-2015)

Landye Bennett Blumstein, LLP v. Jeffrey S. Mutnick, PC

Contract Law: A partnership agreement should be analyzed for clear language, and if ambiguous, extrinsic evidence can be employed.

(Filing Date: 04-01-2015)

Logan v. Logan

Family Law: The trial court has discretion to determine the amount and duration of spousal support that will be just and equitable. The Court of Appeals will not disturb that discretionary determination unless there was a misapplication of law under ORS 107.105.

(Filing Date: 04-01-2015)

Ooten v. Clackamas Cnty.

Land Use: Under OAR 660-004-0018(2)(c), the word “and” is used conjunctively, meaning that all requirements of the rule would need to be satisfied to establish whether proposed amendment and zone changes would require a new exception to Statewide Planning Goals 3 & 4.

(Filing Date: 04-01-2015)

State v. Del Real-Gavez

Evidence: When the State’s argument depended on witness credibility, the jury should hear evidence of “motive to fabricate a disclosure against defendant,” by that witness.

(Filing Date: 04-01-2015)

State v. Hunt

Criminal Law: Under ORS 163.670(1), “permits” means “allows” or “makes possible” and does not require an authority to forbid. True vouching testimony supplants the jury’s assessment of credibility, requiring the court to sua sponte strike the testimony.

(Filing Date: 04-01-2015)

State v. Kreft

Criminal Law: Speech does not qualify as the kind of “behavior” necessary to satisfy the elements of ORS 166.025(1)(a) and the statute only encompasses acts of physical violence. Asking someone for the time is not aggressive enough to be deemed behavior that would be likely to produce the use of physical force by an objectively reasonable person under this statute.

(Filing Date: 04-01-2015)

State v. Thomas

Evidence: When the court allows the State to improperly admit a "vouching" statement it is harmless error if the statement may actually bolster the defense's theory of the case.

(Filing Date: 04-01-2015)

Stave v. Bailey

Evidence: When a victim satisfies the first condition under OEC 803(18a)(b) – testifying and being subject to cross-examination – whether she was “unavailable” is irrelevant to admissibility of her out-of-court statements.

(Filing Date: 04-01-2015)

Bridge City Fam. Med. Clinic v. Kent & Johnson, LLP

Contract Law: A term can become part of a contract even if someone does not expressly manifest assent to the specific term if the other party could reasonably have understood that term to have been accepted. Contracts can include both what has been stated and what is necessarily to be implied from what has been stated.

(Filing Date: 03-25-2015)

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

Juvenile Law: Patterns of drug abuse and failures to complete counseling all demonstrate a pattern that is likely to repeat itself and thus a court can find future detriment to children.

(Filing Date: 03-25-2015)

De Zafra v. Farmers Insurance Company

Insurance Law: Under ORS 742.504, an insurer must “pay all sums that the insured . . . is legally entitled to recover . . . from the owner or operator of an uninsured vehicle because of bodily injury sustained by the insured caused by accident and arising out of the ownership, maintenance or use of an uninsured vehicle,” which does not restrict a claimant to coverage for injury caused only directly by the use of a motor vehicle.

(Filing Date: 03-25-2015)

Grants Pass Imaging & Diagnostic Center v. Marchini

Contract Law: The term "member," as used in an LLC Operating Agreement, means only an active or current member of the LLC, not a former member.

(Filing Date: 03-25-2015)

SAIF v. Traner

Workers Compensation: Under ORS 656.262, when a workers' compensation claimant requests acceptance of a new or omitted medical condition, the insurer must clearly either accept or deny the claim within 60 days, or else the insurer may be required to pay the claimant's attorney fees even if no compensation or penalties are assessed.

(Filing Date: 03-25-2015)

State v. Bartlett

Criminal Law: Where defendant's acts do not deprive a service provider of a right to payment, under ORS 164.125 there is no theft of property and therefore a robbery has not been committed.

(Filing Date: 03-25-2015)

State v. Boyd

Criminal Procedure: Reinitiation of interrogation by a defendant after claiming his right to an attorney constitutes voluntarily and knowingly waiving his Miranda rights.

(Filing Date: 03-25-2015)

State v. Ferguson

Criminal Procedure: Pursuant to Article I, section 9 of the Oregon Constitution, a police officer may lawfully extend a routine traffic stop if he, given the totality of the circumstances, has a reasonable suspicion of further criminal activity and if his subsequent investigations are reasonably connected to that criminal activity.

(Filing Date: 03-25-2015)

State v. Lusareta

Criminal Law: Though State v. Mills asserts that, under Article I, section 11, of the Oregon Constitution, a criminal defendant “has a waivable constitutional right to object to improper venue by way of a pretrial motion”, if the law at the time of trial allows for objection of venue to be raised after the trail has begun, it is permitted to be considered an allowable objection.

(Filing Date: 03-25-2015)

State v. Rice

Criminal Procedure: Under Article I, section 9, of the Oregon Constitution, the state has the burden of showing that the time required to acquire a warrant would have sacrificed evidence, thereby creating an exigent circumstance.

(Filing Date: 03-25-2015)

State v. Ritz

Criminal Procedure: To justify a warrantless entry into a residence under the doctrine of exigent circumstances, the state has the burden to prove that the time it would have taken to obtain a warrant would have sacrificed evidence.

(Filing Date: 03-25-2015)

State v. Schiller-Munneman

Evidence: Under State v. Davis, defendant’s right to silence is not implicated when defendant is not in custody or under compelling circumstances, and a non-response is not a statement or non-verbal conduct and therefore is not hearsay.

(Filing Date: 03-25-2015)

Becker v. Hoodoo Ski Bowl Developers, Inc.

Contract Law: Release of liability provisions may render contracts unconscionable where the factors, outlined in Bagley v. Mt. Bachelor, Inc., (favoring enforcement of the release) are outweighed by relevant countervailing considerations.

(Filing Date: 03-18-2015)

Dept. of Human Services v. D.H.

Evidence: Evidence is insufficient to support a grant of jurisdiction to the juvenile court when there is no evidence that a child has been harmed, or was at risk of harm.

(Filing Date: 03-18-2015)

Fick v. Oregon Dept. of Fish and Wildlife

Administrative Law: An agency is not required to act in a manner directly inconsistent with the purpose of its rules in furtherance of lessening the economic impact of the rules on small businesses, and does not violate ORS 183.540 by declining to do so.

(Filing Date: 03-18-2015)

Johnson v. Premo

Post-Conviction Relief: To prevail on a claim of inadequate assistance of counsel, a petitioner must prove by a preponderance of the evidence that legal counsel failed to exercise reasonable professional skill and judgment based on the law at the time counsel acted and that deficient performance had a tendency to affect the outcome of the prosecution.

(Filing Date: 03-18-2015)

State of Oregon v. D.C. (a youth)

Criminal Procedure: Based on victim testimony, furtive movements by Defendant to distance himself from stolen property, and Defendant's consent to search the bag, there was a reasonable basis established for probable cause to search a backpack.

(Filing Date: 03-18-2015)

State v. Andersen

Civil Procedure: The automobile exception to the warrant requirement of the Oregon Constitution, Article I, Section 9, requires that the officer executing the search must have witnessed the vehicle in motion in connection with the crime.

(Filing Date: 03-18-2015)

State v. Bassett

Sentencing: A sentence of bench probation which restricts a defendant's right to travel anywhere a person night be engaged in hunting is impermissibly overbroad.

(Filing Date: 03-18-2015)

State v. Mays

Criminal Procedure: In order to find a prosecutor engaged in prosecutorial misconduct, the requisite scienter must be shown; specifically, the facts must show the prosecutor intended to cause a mistrial or reversal, or was indifferent to the possibility.

(Filing Date: 03-18-2015)

State v. McMullin

Criminal Procedure: ORS 136.420 is not violated by out-of-court statements as long as the defendant’s state confrontational rights are met. Further, a law dealing with multiple subjects satisfies Article IV of the Oregon Constitution if it contains a “unifying principle logically connecting all provisions.”

(Filing Date: 03-18-2015)

State v. Patterson

Criminal Law: Custody imposed as a result of a post-prison supervision violation after incarceration for a sentence that has been served is not escape from custody imposed as a result of felony conviction.

(Filing Date: 03-18-2015)

State v. Pierce

Evidence: Under OEC 1002, a live camera feed, for purposes of best evidence, is more akin to a phone conversation than it is a recorded video feed.

(Filing Date: 03-18-2015)

State v. Pusztai

Criminal Law: Unauthorized use of a vehicle is not a prosecution for theft so a jury instruction regarding the “honest claim of right” defense is not warranted.

(Filing Date: 03-18-2015)

State v. Rascon

Evidence: ORS 136.420 and OEC 403 do not preclude admission of videotaped out-of-court statements or testimony where the declarant testifies and is subject to cross-examination, satisfying the requirements of Article I, section 11, of the Oregon Constitution.

(Filing Date: 03-18-2015)

State v. Schnur

Evidence: Under OEC 404(3), it is not plain error for a trial court to instruct the jury that it may use evidence of a past guilty plea when determining whether a defendant committed actus reus of the charged crime.

(Filing Date: 03-18-2015)

State v. Simonov

Criminal Law: A conviction under ORS 164.135(1)(a) for unauthorized use of a vehicle may only be reached if the jury finds that defendant knowingly used the vehicle without the consent of its owner.

(Filing Date: 03-18-2015)

State v. Spieler

Criminal Procedure: Defendant's confession in order to cooperate with police was not improper. Prosecutors closing remarks concerning defense's inability to admit evidence, as evidence of defendant’s guilt, was improper.

(Filing Date: 03-18-2015)

State v. Stone

Criminal Procedure: The fact that police question a person as a suspect in a crime does not inherently create a compelling setting for Oregon constitutional purposes.

(Filing Date: 03-18-2015)

State v. Tilly

Criminal Law: To establish the forcible compulsion element of first-degree sexual abuse, the State must prove the nexus between the forcible compulsion and the predicate sexual act.

(Filing Date: 03-18-2015)

State v. Underhill

Evidence: A defendant’s statements during a polygraph test must be made voluntarily in order to be admissible.

(Filing Date: 03-18-2015)

State v. Valerio

Criminal Law: “Accomplice liability is both created by and limited by ORS 161.155” in that criminal liability of an accomplice can be attached to a crime that is intended but the statute does not extend the liability to the natural and probable consequence of the intended crime.

(Filing Date: 03-18-2015)

Wels v. Hippe

Property Law: To establish a prescriptive easement a party must show adverse use of land, meaning that the use of the property is not subordinate to the owner, is or may be wrongful, and is open and notorious.

(Filing Date: 03-18-2015)

Godinez v. SAIF

Administrative Law: An agency is entitled to deference when it makes a plausible interpretation of its own rule, even when the interpretation is made in the course of applying the rule, so long as it is not inconsistent with the wording of the rule or other source law.

(Filing Date: 03-11-2015)

Magno-Humphries, Inc. v. Apex Label & Systems, Inc.

Appellate Procedure: No matter claimed as error will be considered on appeal unless the claim of error is assigned as error in the opening brief in accordance with ORAP 5.45(1). To assign error, the appellant must "identify precisely the ruling that is being challenged." The challenged ruling should be quoted or contained in the excerpt of record.

(Filing Date: 03-11-2015)

State v. Davis

Evidence: OEC 412 is intended to protect victims of sexual abuse from having “degrading or embarrassing disclosure of intimate details about [their] private lives” and the prejudicial effect of such details will be weighed against the probative value of the proffered evidence.

(Filing Date: 03-11-2015)

State v. Hodges

Criminal Law: Under ORS 165.800(1), the state must prove Defendant obtained, transferred, created, uttered or converted to his own use the personal identification of another person with the intent to deceive or defraud, and may use circumstantial evidence and reasonable inference to do so.

(Filing Date: 03-11-2015)

State v. Swinney

Evidence: An officer's expert testimony regarding sexual grooming and abuse is relevant under OEC 401, admissible under OEC 702, and does not constitute an impermissible comment for a victim's credibility.

(Filing Date: 03-11-2015)

Sundermier v. State

Remedies: ORS 238.364 provides a remedy meant to approximate a rebate of income tax paid, and not a windfall in excess of what a member would have received if the benefit had been tax exempt.

(Filing Date: 03-11-2015)

Dept. of Human Services v. T.L.

Civil Procedure: To preserve a claim of inadequate assistance of appointed trial counsel, a parent in a dependency proceeding must first seek to resolve that issue in the juvenile court by moving, under ORS 410B.923(1), for the court to modify or set aside the judgment or order related to the claim.

(Filing Date: 03-04-2015)

Miller v. Miller

Family Law: If all factors are equal and without a factual showing of detriment to the child, preference under ORS 107.137 must be given to the primary caregiver.

(Filing Date: 03-04-2015)

State v. Eastman

Criminal Procedure: To "reasonably suspect," an officer must subjectively believe that the person being stopped has committed a crime, and that belief must be objectively reasonable.

(Filing Date: 03-04-2015)

State v. Hazlett

Criminal Law: An expert witness who is a pharmacologist and an anesthesiologist is qualified to testify in regards to a defendant's ability to form criminal intent. A contradictory trial court determination on that issue would not prove to be harmless error for charges that require the state to prove that the defendant acted knowingly or intentionally.

(Filing Date: 03-04-2015)

State v. Hiner

Criminal Law: When proving a sex offender failed to report, under former ORS 181.599(1)(d), the state must prove that a sex offender both left a previous residence and completed a move into a new residence while failing to comply with reporting requirements. The 2009 amendment to this statute (currently numbered ORS 181.812(1)(d)) requires the state to prove only that the sex offender moved from a previous residence and failed to comply with reporting requirements.

(Filing Date: 03-04-2015)

State v. Johnson

Appellate Procedure: The Court of Appeals lacks jurisdiction when a defendant plead guilty, and the trial court's sentence does not exceed the maximum sentence allowable by law.

(Filing Date: 03-04-2015)

State v. Lunetta

Evidence: When the evidence has a tendency to connect defendant to the charged crimes independent of any accomplice testimony, the accomplice testimony is corroborated.

(Filing Date: 03-04-2015)

State v. Nichols

Criminal Procedure: A court can look to the cumulative “specific and articulable facts” as set out in State v. Holdorf where even if the individual “specific and articulable facts” in and of themselves are not to a level of reasonable suspicion, if under the totality of the circumstances the facts indicate a level of reasonable suspicion, then there is sufficient reasonable suspicion for an investigatory stop.

(Filing Date: 03-04-2015)

Toohey v. Aviation Adventures, LLC

Workers Compensation: The purpose of ORS 656.027 is to identify "subject workers" whose work-related injuries are covered by Oregon's Workers' Compensation Law, not to identify coworkers who can be sued despite the exclusive-remedy provisions in ORS 656.018. "Subject worker" is direct at types of workers who are eligible for benefits under a parallel federal statutory compensation scheme for work-related injuries.

(Filing Date: 03-04-2015)

West v. Multnomah Cnty.

Land Use: Under the template test, a dwelling must continue to exist, as a dwelling, at the time the test is applied; to be considered a dwelling, the structure must have the functional necessities that make use as a dwelling possible.

(Filing Date: 03-04-2015)

Hagberg v. Coursey

Post-Conviction Relief: To prove ineffective assistance of counsel, a criminal defendant must show that counsel failed to bring an argument based on law that existed at the time of trial, and it is not sufficient to show that the argument would later be deemed meritorious.

(Filing Date: 02-25-2015)

Hickey v. Hickey

Corporations: The historical statutory context of ORS 60.952 is that it was enacted to reflect judicial practice and that practice has been to avoid penalizing controlling shareholders’ ownership interests in a manner that significantly departing from what was required to relieve minority shareholders from the oppressive conduct; and also to avoid increasing any value or benefit from a minority shareholders’ interest beyond what minority shareholders could reasonably expect or the fair value of the shares.

(Filing Date: 02-25-2015)

Hostetler and Hostetler

Family Law: ORS 107.105(1)(f) establishes a rebuttable presumption that spouses have contributed equally to marital property and asks the court to make just and proper property divisions in light of that presumption. ORCP 68 (C)(4)(g) states that a trial court is required to make attorney fee award findings only when a party makes a written request for them.

(Filing Date: 02-25-2015)

Htaike v. Sein

Civil Procedure: If there is no statutory basis to bring an action to recover usurious interests paid, equitable relief may be available.

(Filing Date: 02-25-2015)

JRP Construction Enterprises, Inc. v. Department of Consumer Business Services

Workers Compensation: Director's dismissal of ALJ decision for attorneys’ fees concerning litigating the insurance pre-authorization under ORS 656.704(2)(a) was improper because the use of moot was ambiguous in this context and the issue concerning attorney’s fees must be reconsidered.

(Filing Date: 02-25-2015)

Providence Health System v. Walker

Workers Compensation: Whether a board's action is reasonable depends on the underlying facts and, based on those facts, whether the conclusion the board made constitutes an error of law.

(Filing Date: 02-25-2015)

State v. Beck

Criminal Procedure: A trial court does not err when it denies a motion to suppress if the then admitted statements are harmless.

(Filing Date: 02-25-2015)

State v. Chandler

Appellate Procedure: Arguments not preserved in the trial court, and not accompanied by a request for plain-error review, will not be considered for the first time on appeal.

(Filing Date: 02-25-2015)

State v. English

Criminal Law: A person who is aware of, and consciously disregards, a substantial and unjustifiable risk that an injury will occur acts recklessly, not knowingly.

(Filing Date: 02-25-2015)

State v. Hernandez

Evidence: Evidence as to whether a witness has a personal interest in a case is relevant, and failure to admit such evidence may not be harmless error if the jury is not fully informed of the facts necessary to assess the credibility of that witness.

(Filing Date: 02-25-2015)

Stoeckert v. Nooth

Post-Conviction Relief: Under ORS 138.580 and Ogle v. Nooth, 355 Or. 570 (2014), in order to receive a hearing, a petitioner for post-conviction relief need only show prima facie evidence “sufficient to submit the case to the factfinder” that, if true, would permit the court to rule in favor of the petitioner.

(Filing Date: 02-25-2015)

WSB Investment, LLC v. Pronghorn Development Company, LLC

Corporations: Under ORS 65.369(1), gross negligence or intentional misconduct must be shown to hold a defendant nonprofit director liable for any breach of fiduciary duty under ORS 65.357(1). Summary judgment may be avoided in cases where breach of the statutory duty of loyalty is shown by a violation of duties contained in the declaration and bylaws of a homeowners association.

(Filing Date: 02-25-2015)

A.M.M. v. Hoeffer

Civil Stalking Protective Order: A Petitioner to meet the burden of proof for a permanent stalking protective order (SPO), petitioner must tie their fear and alarm to an apprehension regarding personal safety.

(Filing Date: 02-19-2015)

Lenn v. Baldwin

Appellate Procedure: Jury instructions which are correct statements of law and not likely to create an erroneous impression in the minds of jurors are not grounds to remand.

(Filing Date: 02-19-2015)

Oakleigh-McClure Neighbors v. City of Eugene

Land Use: Notice of intent to appeal is effectively filed, for purposes of determining the timeliness of a motion to intervene under ORS 197.830(7) by a person required under OAR 661-010-0015(2) to be served with the notice, on the date of that service.

(Filing Date: 02-19-2015)

State v. Korth

Criminal Procedure: To show that a criminal defendant had knowledge, the evidence must show beyond a reasonable doubt that he had knowledge of the particular crime for which he is charged.

(Filing Date: 02-19-2015)

State v. Kuschnick

Constitutional Law: Even if officers lawfully extended a stop to investigate the passenger’s involvement in another crime, once that investigation end and the officers are prepared to give defendant his citation, the officers violated Article I, section 9, when they do not issue the citation and instead continued to seize defendant without justification.

(Filing Date: 02-19-2015)

State v. Patterson

Sentencing: When a court revokes probation on a felony conviction the court is not imposing sentencing on the original conviction, but rather is it sanctioning the defendant for having violated the condition of his or her probation.

(Filing Date: 02-19-2015)

5 Star, Inc. v. Atlantic Casualty Ins. Co.

Insurance Law: Under ORS 701.105(2003), in order to show unlawful contract reformation, a plaintiff must show that a new insurer agreed to the terms of a former insurance policy to be bound by that former policy. To prove negligent procurement of insurance, a plaintiff must show that defendant insurance agent was an agent of the particular insurer under ORS 744.078(4).

(Filing Date: 02-11-2015)

In the Matter of the Marriage of Morgan and Morgan

Family Law: OAR 137-050-0715(7)(b)(2012) states that in making a child support determination, a parent with a "verified disability" will have their income calculated as their actual income rather than their "presumed" income.

(Filing Date: 02-11-2015)

Johnson v. Jones

Tort Law: The intent requirement to incur liability for a battery claim is met when a defendant transmits a sexually transmitted infection which they are aware of, but do not disclose their diagnosis to their sexual partner.

(Filing Date: 02-11-2015)

Leonard v. Moran Foods

Civil Procedure: On review of a grant of summary judgment, the court's review is limited to the record that exists at the time of the court's ruling on the motions for summary judgment.

(Filing Date: 02-11-2015)

State of Oregon v. Marsh & McLennan Companies, Inc.

Constitutional Law: ORS 59.135 does not possess a rebuttable presumption component concerning fraud in reliance, nor is there a federal preemption problem concerning the dormant Commerce Clause because Oregon law does not require those elements as proof.

(Filing Date: 02-11-2015)

State v. Antoine

Criminal Procedure: As long as the State’s election of criminal acts it was prosecuting at trial does not introduce a new theory, element, or crime it is permissible.

(Filing Date: 02-11-2015)

State v. Islam

Criminal Law: Awarding restitution for stolen property is adequate when the theft occurs in retail space.

(Filing Date: 02-11-2015)

State v. Mercer

Criminal Procedure: The rule for initiative measures requires that a proposed law or amendment to the Constitution shall embrace one subject only and matters properly connected therewith.

(Filing Date: 02-11-2015)

State v. Starr

Evidence: Admissible hearsay statements do not violate the state constitution’s Confrontation Clause if the declarant is available and the statements have adequate indicia of reliability.

(Filing Date: 02-11-2015)

State v. Tegland

Criminal Procedure: Where erecting a structure in a public space is illegal and the person has been so informed and told that the structure must be removed, there is no reasonable expectation of privacy associated with the space.

(Filing Date: 02-11-2015)

Steel Capital Steel, LLC v. Williams

Civil Procedure: Under ORCP 26 A, a court must allow a reasonable time for the substitution of a real party in interest once the objection has been raised. The denial of an ORCP 71 B motion may not be considered on appeal unless a new or amended notice of appeal is filed, where a party received a general judgment, filed an ORCP 71 B motion for relief, filed a notice of appeal of the general judgment, and the ORCP 71 B motion was denied.

(Filing Date: 02-11-2015)

Taylor v. Portland Adventist Medical Center

Appellate Procedure: ORS 19.250(2) does not apply where a trial court judge determines to let a subsequent trial proceed following a mistrial in the same matter. The trial court judge is not making a judgment nor does the trial court's order “'effectively determine[] the action so as to prevent a judgment in the action.' It merely allows for another trial,” thus making a denial to a motion for dismissal unappealable.

(Filing Date: 02-11-2015)

Zielinski v. State of Oregon

Civil Procedure: There is a rebuttable presumption that the elements of the doctrine of laches have been sufficiently proven, and therefore apply, when an analogous statute of limitations for an action at law has been exceeded.

(Filing Date: 02-11-2015)

Arms v. SAIF

Workers Compensation: To properly analyze a claim, the court must first determine whether a claimant has a compensable injury and whether he sought medical services for a condition that was “caused in material part by” that injury. If it was, the court is to consider whether any of the limitations identified in ORS 656.245(1)(a) apply — namely, the limitations set out in ORS 656.225 and the limitations for consequential or combined conditions.

(Filing Date: 02-04-2015)

Cox v. Howton

Criminal Procedure: In order for a post-conviction court to grant relief due to inadequate counsel, it must be shown that the attorney’s error was the but-for cause of the client’s decision.

(Filing Date: 02-04-2015)

Deardorff v. Farnsworth

Insurance Law: Estoppel cannot be used to negate an express exclusion in an insurance policy, unless it is through interpretation of an ambiguous provision.

(Filing Date: 02-04-2015)

Lake Oswego Preservation Society v. City of Lake Oswego

Land Use: Under ORS 197.772(3), a successor in interest to property imposed with a historic designation may remove that designation, even if the particular owner was not the owner at the time of the designation. LUBA has jurisdiction to hear appeals regarding removal of historic designations.

(Filing Date: 02-04-2015)

Real v. Nooth

Criminal Law: In determining whether a sentence is disproportionate under Article I, section 16, of the Oregon Constitution, the Court considers three factors: a comparison of the severity of the penalty and the gravity of the crime; a comparison of the penalties imposed for other, related crimes; and the criminal history of defendant.

(Filing Date: 02-04-2015)

State v. J.L.S.

Juvenile Law: Conviction under ORS 162.375 must be supported by evidence that defendant initiated a false report, rather than mere evidence that a defendant initiated a process that later resulted in that person giving false information about a true incident to police.

(Filing Date: 02-04-2015)

State v. Larson

Post-Conviction Relief: When determining whether to set aside a conviction under ORS 137.225, a court may only consider the circumstances and behavior manifested by a criminal defendant's conduct for the 10-year period after conviction.

(Filing Date: 02-04-2015)

State v. Nascimento

Criminal Law: Under ORS 164.377(4), “Without authorization” applies to a machine limited to one function, and authorization given to use such machine for that one function, which does not constitute general authorization to use the machine for other functions outside of what was indicated.

(Filing Date: 02-04-2015)

State v. Nguyen

Family Law: When determining whether a father has access to resources outside of his regular income, the court must make findings based on facts supported by evidence in the record and not merely on the testimony of the mother.

(Filing Date: 02-04-2015)

State v. Reed

Evidence: The proponent of scientific evidence must demonstrate that the proposed evidence is based on scientifically valid principles and that it is pertinent to the issue to which it is directed

(Filing Date: 02-04-2015)

State v. Soto

Criminal Law: Under ORS 138.050(1), a Defendant may not appeal an imposition of fines and fees for DUII within the statutorily allowable amount where the trial court misunderstood the law with respect to its discretion to reduce or waive some of the fees.

(Filing Date: 02-04-2015)

State v. Tucker

Criminal Law: Under ORS 137.225, the second public indecency (or similar) conviction, which amounts to a “sex crime” as defined in ORS 181.805, is ineligible to be set aside.

(Filing Date: 02-04-2015)

State v. Wheeler

Sentencing: Under both ORS 151.505(3) and 161.665(4), a court may not order a convicted criminal defendant to pay his court-appointed attorney fees, unless the defendant can or may be able to pay them.

(Filing Date: 02-04-2015)

Washington v. Board of Parole

Sentencing: Under the parole matrix system, the Board of Parole and Post-Prison Supervision has statutory authority to determine whether those prison terms would be served consecutively or concurrently, and may revisit or recalculate earlier opinions.

(Filing Date: 02-04-2015)

Davis and Davis

Family Law: Under ORS 107.105, if the property at issue is a personal injury settlement, the equal contribution presumption is overcome when the injured spouse can prove that the other spouse did not have a part in the settlement and failed to claim damages for consortium.

(Filing Date: 01-28-2015)

Dowell v. Oregon Mutual Ins. Co.

Insurance Law: Under ORS 742.524(1)(a), personal injury protection (PIP) medical benefits do not include a covered individual’s transportation costs incurred when attending medical appointments or obtaining medication.

(Filing Date: 01-28-2015)

State v. J.M.M.

Criminal Law: Mere presence during the planning and commission of a crime, or acquiescence alone, is insufficient to find a defendant guilty of aiding and abetting a crime under ORS 161.155(2)(b).

(Filing Date: 01-28-2015)

State v. Velykoretskykh

Evidence: Notice of suspension, like a return of service, was not testimonial.

(Filing Date: 01-28-2015)

State v. Young

Criminal Procedure: Even if the officer-safety exception justifies initial seizure, once passengers are seated on the curb and backup has arrived, there’s no plausible reason why safety concerns would require reentry to the vehicle or removal of property.

(Filing Date: 01-28-2015)

Neidhart v. Page

Landlord Tenant: Notwithstanding any acceptance of partial payment, even if the right to terminate tenancy is waived based on nonpayment of rent a subsequent default gives new ground to terminate the tenancy.

(Filing Date: 01-22-2015)

Smith v. Board of Parole

Parole and Post-Prison Supervision: Neither due process nor Oregon's APA require parole consideration hearings under ORS 144.228 to allow subpoenas for witnesses at the hearing.

(Filing Date: 01-22-2015)

Smith v. Mills

Post-Conviction Relief: There is no Oregon statutory entitlement (under ORS 144.315, ORS 183.413, and ORS 183.445), or Constitutional entitlement (under Oregon Constitution Article 1, section 10, or the 14th Amendment of the US Constitution) to subpoena witnesses for parole consideration hearings.

(Filing Date: 01-22-2015)

State ex rel Stewart v. City of Salem

Attorney Fees: Under ORS 34.210(2), a trial court has discretion to award attorney fees to a “prevailing party” and may consider the entirety of the circumstances of the litigation when determining whether to award attorney fees on remand. Additionally, the trial court has discretion to determine the reasonableness of a party’s legal position under ORS 20.075(1)(b) and may consider the totality of the circumstances of litigation under ORS 20.075(1)(e) prior to awarding attorney fees on remand.

(Filing Date: 01-22-2015)

State v. Baucum

Evidence: OEC 702, and State v. O’Key require that scientific evidence presented by an expert be generally accepted, peer reviewed, with an acceptable error rate and variability, and retrograde extrapolation satisfies all of these requirements.

(Filing Date: 01-22-2015)

State v. Heilman

Criminal Procedure: Under Article I, sec. 9, of the Oregon Constitution, facts as perceived by an officer that do not constitute a violation of the law do not give rise to probable cause.

(Filing Date: 01-22-2015)

State v. J. C. N.-V.

Juvenile Law: Under 419C.349(3), a juvenile defendant may be waived into circuit court and tried as an adult when the defendant is aware of the nature, degree of participation, and consequences of the alleged criminal act.

(Filing Date: 01-22-2015)

State v. Lee

Criminal Procedure: Based on the text, context, and legislative history of the term "tampering," for the purposes of ORS 164.345(1), to "tamper" requires conduct that alters, rearranges, or changes property in a way that has an adverse effect on the property or its use.

(Filing Date: 01-22-2015)

State v. Nistler

Criminal Law: Under ORS 131.125(8), the statute of limitations for aggravated first-degree theft is three years, unless a theory of continuing criminal action is set forth in the indictment, which may toll the statute of limitations.

(Filing Date: 01-22-2015)

State v. Slatton

Criminal Law: ORS 164.055(1)(a) and (d) are not separate statutory provisions for the purposes of merging convictions.

(Filing Date: 01-22-2015)

State v. Sundberg

Evidence: Under OEC 401, an explanation as to why an alleged victim may have described her anatomy inconsistently is relevant explain her testimony.

(Filing Date: 01-22-2015)

State v. T.C.

Civil Commitment: For a court to grant conditional release from an involuntary-commitment order, that the committed person must prove that the conditional release would be in their best interest, and that they would be adequately supervised by an able caretaker.

(Filing Date: 01-22-2015)

State v. Urbaschak

Appellate Procedure: Erroneously admitted evidence that is not cumulative and relates to a central disputed issue is not harmless error.

(Filing Date: 01-22-2015)

Vukanovich v. Kine

Civil Procedure: In regards to a Judgment Not Withstanding the Verdict, the Court will look to see if there is any evidence to support the jury’s verdict. If there is, the JNOV will not be sustained.

(Filing Date: 01-22-2015)

State v. Ross Bros. & Co., Inc.

Appellate Procedure: When a party does not file an amended answer to an amended complaint, and fails to raise substantive legal arguments at trial, then they have not preserved those substantive legal arguments for appeal.

(Filing Date: 01-14-2015)

Baker v. Premo

Post-Conviction Relief: Trial counsel agreeing to change the terms of a plea agreement in such a way that increases the total sentence is not enough to prove constitutionally inadequate assistance of counsel if the sentencing court would have imposed the same sentence.

(Filing Date: 01-07-2015)

Dept. of Human Services v. A.L.

Juvenile Law: Under ORS 419B.100(1)(c), parents entrusting the primary care of their children with paternal grandparents who do not pose a current threat is not a basis for asserting jurisdiction over children.

(Filing Date: 01-07-2015)

State v. Baiz

Criminal Procedure: When a car is parked, immobile, and unoccupied at the time of a police encounter, then the car is not “mobile”, as required by the automobile exception to the warrant requirement for a police search.

(Filing Date: 01-07-2015)

State v. Gibson

Criminal Procedure: Probable cause has two aspects: the officer must subjectively believe that a crime has been committed, and that belief must be objectively reasonable under the totality of the circumstances. The facts that determine whether there is objective probable cause are the facts known by the arresting officer at the time of the arrest.

(Filing Date: 01-07-2015)

State v. Kirkland

Remedies: A trial court may conduct additional fact-finding relevant to the amount of a restitution during the sentencing phase of trial. However, a defendant can only be required to pay restitution for conduct which he was convicted of or admitted to doing.

(Filing Date: 01-07-2015)

Wade v. Brockamp

Post-Conviction Relief: Failure of counsel to object to a faulty jury instruction may prejudice defendant and suffice to prove ineffective assistance of counsel.

(Filing Date: 01-07-2015)

Dept. of Human Services v. A.F.

Juvenile Law: In a juvenile court jurisdictional hearing, the conditions and circumstances that give rise to jurisdiction over the children must exist at the time of the hearing.

(Filing Date: 12-31-2014)

Dept. of Human Services v. E. M.

Juvenile Law: Juvenile court has the authority to postpone a hearing or make other procedural accommodations to protect the parent’s right to participate when a parent is unable to or prevented from personally appearing due to parent’s incarceration, physical condition, mental illness, or need to be in another courthouse at the same time as the parent’s scheduled hearing.

(Filing Date: 12-31-2014)

Hall v. Dept. of Corrections

Administrative Law: Judicial review of an administrative rule is limited to its challenge on the face of the rule and not “as applied.”

(Filing Date: 12-31-2014)

Sawyer v. Real Estate Agency

Administrative Law: A license may be revoked and discipline assigned under ORS 696.775 and 696.301 even if the license has expired, so long as revocation of the license that existed at the time the Notice was issued as an appropriate sanction and is within the Real Estate Agency's discretion.

(Filing Date: 12-31-2014)

Scott v. Liberty Northwest Ins. Corp.

Administrative Law: An authorization of temporary disability benefits is legally sufficient under ORS 656.262(4) when an objectively reasonable insurer would understand contemporaneous medical reports to signify approval excusing the worker from work.

(Filing Date: 12-31-2014)

Sexton v. Persson

Post-Conviction Relief: To determine whether a sentence is constitutionally proportional under Article I, section 16, of the Oregon Constitution, a court should consider the actual sentence imposed for the offense with the maximum sentence allowed for the greater-included offense.

(Filing Date: 12-31-2014)

State, acting by and through the Oregon Health Authority v. Cue

Civil Procedure: The time limitations to bring a claim under ORS 115.005 are waived when the representative of an estate fails to satisfy the notice condition of ORS 115.005(3)(b).

(Filing Date: 12-31-2014)

State v. Buckles

Appellate Procedure: Under ORS 138.050(1), except as otherwise provided in ORS 135.335, concerning conditional pleas, a defendant who has plead guilty or no contest may take an appeal from a judgment or order described in ORS 138.053 only when the defendant makes a colorable showing that the disposition: (a) exceeds the maximum allowable by law; or (b) is constitutionally cruel and unusual.

(Filing Date: 12-31-2014)

State v. Camacho-Garcia

Sentencing: Under Article I, section 16, of the Oregon Constitution, a defendant’s sentence of 75 months under ORS 137.700(2)(a)(P) for repeated, skin-to-skin sexual touching of his live-in girlfriend’s daughter under 14 years of age was not disproportionate, evaluated using the three Rodriguez/Buck factors to find the sentence would not shock the moral sense of a reasonable person.

(Filing Date: 12-31-2014)

State v. Jackson

Criminal Procedure: Evidence obtained pursuant to an unlawful search should be inadmissible - even if said evidence is acquired from a consented search that resulted from unlawful search.

(Filing Date: 12-31-2014)

State v. Menefee

Criminal Procedure: In order to waive the right to counsel, a defendant must express clear intent to do so, under the specific circumstances of the particular case. However, when someone chooses to represent themselves and they are thrown out of court for being disruptive, the defendant has not automatically waived their overall right to representation.

(Filing Date: 12-31-2014)

State v. Nunes

Criminal Procedure: A single criminal episode of possession during which a defendant felon has continuous actual or constructive possession of a firearm is not subject to the ORS 161.067 "anti-merger statute."

(Filing Date: 12-31-2014)

State v. Paniagua

Evidence: Under OEC 608(1), a defense witness may not offer character testimony if that witness has insufficient contact with the individual against whom the testimony is directed.

(Filing Date: 12-31-2014)

State v. Rodriguez-Rodriguez

Criminal Procedure: An indictment can be sustained even if an essential element or fact was communicated only by implication or context.

(Filing Date: 12-31-2014)

State v. Rudnick

Sentencing: It is a plain error to expose a defendant to six months of additional supervision; if such an error can be easily remedied, the Court may exercise its discretion to correct it.

(Filing Date: 12-31-2014)

State v. Urie

Sentencing: Under ORS 813.011(3), a 90-day jail sentence must be imposed upon conviction of a Class C felony and a court does not have authority to reduce or suspend this sentence in any way.

(Filing Date: 12-31-2014)

State v. Wendt

Constitutional Law: When a defendant has not suffered prejudice, and delays in trial are the result of good faith, or factors outside of the parties' control, then a defendant's state and federal constitutional right to speedy trial is not violated.

(Filing Date: 12-31-2014)

Sunset Presbyterian Church v. Anderson Construction Co.

Civil Procedure: ORS 30.140 only requires a subcontractor to defend a general contractor to the extent that plaintiff's allegations implicate the subcontractor's work; and similarly plaintiff's petition for attorney’s fees must divide attorney’s fees between allegations or claims.

(Filing Date: 12-31-2014)

Thompson v. Belleque

Post-Conviction Relief: Claims of constitutionally deficient representation must be supported by specific facts in the record not only showing representation was deficient, but also that it tended to affect the outcome of the trial.

(Filing Date: 12-31-2014)

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

Environmental Law: Under ORS 537.230(2)(c), the Water Resources Department must find that undeveloped portions of permits are subject to conditions that preserve from decline the continued existence, or endurance, of listed fish species in the affected waterway.

(Filing Date: 12-31-2014)

Williams v. Gaylord

Attorney Fees: Under ORS 31.735(1), attorneys may recover a 40% statutory share of damages, regardless of whether there is additional recovery.

(Filing Date: 12-31-2014)

Wyers v. American Medical Response Northwest, Inc.

Tort Law: ORS 124.100(5) requires that the defendant know of the existence of the requisite circumstance at the time of the alleged "permitting." An action is deemed permitted when the person knowingly acts or fails to act under circumstances in which a reasonable person should have known of the physical abuse.

(Filing Date: 12-31-2014)

Yeatts v. Polygon Northwest Company

Tort Law: For a general contractor to be liable for the negligence of a subcontractor under Oregon's Employer Liability law, they must be engaged in a "common enterprise".

(Filing Date: 12-31-2014)

Copeland Sand & Gravel, Inc. v. Estate of Angeline Dillard

Contract Law: Where there is a dispute over the meaning of a mineral reservation contained in a deed, the term must be analyzed using the three Yogman factors.

(Filing Date: 12-24-2014)

Dept. of Human Services v. L.C.

Family Law: To have continued jurisdiction over a child there needs to be current threat of danger or serious loss of injury that is based in facts, and not speculation. The factual basis “cannot be based on a parent's past problems, absent evidence that the problems persist and endanger the child.”

(Filing Date: 12-24-2014)

Hall v. Speer

Attorney Fees: Application for benefits, coupled with a doctor’s report and correspondence with an insurer, are not sufficient “proof of loss” to require the payment of attorney fees.

(Filing Date: 12-24-2014)

Intel Corp. v. Batchler

Workers Compensation: Under ORS 656.268(10) and ORS 656.340(12), with each accepted claim for a work-compensable injury, an injured worker must be compensated for a minimum of 16 months, and may also be compensated for a maximum of 21 months with agreement from a self-insured employer.

(Filing Date: 12-24-2014)

McDonald v. MacDonald

Attorney Fees: When an attorney fee agreement includes language that allows for a court to determine particular statutory factors in determining attorney legal fees, an appeal arising from an issue with an adverse ruling by the court in regards to those legal fees will not be considered to have been preserved.

(Filing Date: 12-24-2014)

P.M.H. v. Landolt

Civil Stalking Protective Order: To satisfy ORS 30.866, it is not sufficient to prove that someone is in reasonable objective apprehension of their or their family’s personal safety when someone sends letters or gifts to a child through third parties at their school.

(Filing Date: 12-24-2014)

Simonsen v. Premo

Post-Conviction Relief: Advice to plead guilty in a capital case without first securing a guarantee that the State will not seek the death penalty is not categorically inadequate assistance of counsel.

(Filing Date: 12-24-2014)

State v. Bigsby

Appellate Procedure: Under ORS 138.040, a judgment is not appealable where the trial court had already accepted an unqualified, written guilty plea and the parties did not make an effort to withdraw the unqualified plea and try the disputed issue.

(Filing Date: 12-24-2014)

State v. Blasingame

Appellate Procedure: On appeal, a court has the discretion to recognize challenges that were neither raised nor preserved at trial, but this discretion should only be exercised cautiously.

(Filing Date: 12-24-2014)

State v. Clemons

Criminal Procedure: There are three factors to determine causal connection in considering evidence tainted under the fourth amendment: the temporal proximity between unlawful police conduct and the discovery of the evidence; the presence of intervening circumstances, and "particularly, the purpose and flagrancy of the official misconduct."

(Filing Date: 12-24-2014)

State v. Cook

Attorney Fees: An erroneous attorney fee award is not reversible if the error is unpreserved for appeal, not plain on the face of the record, and invited by the appellant.

(Filing Date: 12-24-2014)

State v. Crombie

Family Abuse Prevention Act: Defendant may not address the victim of a FAPA order in a pleading, which may include some statements addressed to the court if it is clear they were intended for the victim.

(Filing Date: 12-24-2014)

State v. Evans

Criminal Law: Burglary is accomplished if a person enters or remains unlawfully, in a dwelling, with the intent to commit a crime therein.

(Filing Date: 12-24-2014)

State v. Kreiss

Remedies: The 2005 amendments to ORS 137.106 awards "economic damages" as set out in ORS 31.170(2)(a), meaning “objectively verifiable monetary loss”, and not just those that would have been awarded in a civil action.

(Filing Date: 12-24-2014)

STATE v. LILE

Criminal Procedure: The right to counsel under Article 1, section 11 of the Oregon Constitution includes the right to privacy when communicating with an attorney through the attorney’s representative.

(Filing Date: 12-24-2014)

State v. Mejia-Espinoza

Attorney Fees: A court cannot impose fees based on pure speculation that a defendant has funds to pay the fees or may acquire them in the future. The State bears the burden of proving that the defendant is or may be able to pay attorney fees.

(Filing Date: 12-24-2014)

State v. R. L. W.

Civil Commitment: Pursuant to ORS 427.290, the State must prove, by clear and convincing evidence, that a person has an intellectual disability so that he is incapable of caring for himself or is a danger to himself or to others.

(Filing Date: 12-24-2014)

US Bank NA v. Eckert

Property Law: The Oregon Trust Deed Act, ORS 86.803 contemplates post-sale challenges to trustees’ sale in forcible entry and wrongful detainer actions, and Oregon Courts have recognized the validity of post-sale challenges.

(Filing Date: 12-24-2014)

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)

???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

Criminal 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)

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)

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)

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)

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)

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)

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

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)

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)

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. 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. 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)

Association of Oregon Corrections Employees v. DOC

Employment Law: The statutory obligations of the Public Employees Benefit Board are not compatible with the State’s bargaining obligations under the Public Employees Collective Bargaining Act.

(Filing Date: 10-22-2014)

City of Damascus v. Brown

Municipal Law: HB 4029 constitutes an unconstitutional delegation of power because it delegates the power to determine the city's boundary out of the hands of the legislature and city, and into the hands of “self-interested private landowners” without procedural safeguards.

(Filing Date: 10-22-2014)

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

Post-Conviction Relief: 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)

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)

State v. Wilson

Evidence: Though truth vouching testimony must be stricken sua sponte by the trial court, testimony regarding the manner in which a victim communicates information is admissible because it is most closely related to the victim’s demeanor and not related to whether the witness in fact believed the victim testimony.

(Filing Date: 10-22-2014)

Triangle Holdings, II, LLC v. Stewart Title Guaranty Company

Insurance Law: Under ORS 742.061(1), an insured has not obtained “recovery” against an insurer where the insured accepted payment by the insurer and summary judgment was granted. “Recovery” is obtained by an insured only when a money judgment is granted against the insurer.

(Filing Date: 10-22-2014)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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 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)

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)

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. 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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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

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

(Filing Date: 02-26-2014)

Dept of Human Services v. N.B

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

(Filing Date: 02-26-2014)

Eclectic Investment, LLC. v. Patterson

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

(Filing Date: 02-26-2014)

Martin v. Gomes

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

(Filing Date: 02-26-2014)

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)

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)

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)

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)

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)

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)

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)

In re McCarthy

Professional Responsibility: A 90-day suspension from the practice of law is an appropriate sanction for an attorney who has been found to have knowingly violated RPC 1.1, RPC 1.4(a), RPC 1.4(b), RPC 1.15-1(c).

(Filing Date: 01-16-2014)

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)

Brown v. MacDonald and Associates, LLC

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

(Filing Date: 12-26-2013)

Cortese and Cortese

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

(Filing Date: 12-26-2013)

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

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

(Filing Date: 12-26-2013)

Department of Human Services v. J. M.

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

(Filing Date: 12-26-2013)

Dizick v. Board of Parole and Post-Prison Supervision

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

(Filing Date: 12-26-2013)

McNeff v. Emmert

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

(Filing Date: 12-26-2013)

SAIF v. Walker

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

(Filing Date: 12-26-2013)

State v. Badillo

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

(Filing Date: 12-26-2013)

State v. Evans

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

(Filing Date: 12-26-2013)

State v. Fitzhugh

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

(Filing Date: 12-26-2013)

State v. Groner

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

(Filing Date: 12-26-2013)

State v. Mazzola

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

(Filing Date: 12-26-2013)

State v. Moore

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

(Filing Date: 12-26-2013)

State v. Ramirez-Estrada

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

(Filing Date: 12-26-2013)

State v. Sills

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

(Filing Date: 12-26-2013)

State v. Wier

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

(Filing Date: 12-26-2013)

State v. Wolf

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

(Filing Date: 12-26-2013)

Talbott v. Teacher Standards & Practices Commission

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

(Filing Date: 12-26-2013)

Tilson and Tilson

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

(Filing Date: 12-26-2013)

Uhde and Uhde

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

(Filing Date: 12-26-2013)

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

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

(Filing Date: 12-18-2013)

Cejas Commercial Interiors, Inc. v. Torres-Lizama

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

(Filing Date: 12-18-2013)

Conrady v. Lincoln County

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

(Filing Date: 12-18-2013)

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

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

(Filing Date: 12-18-2013)

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

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

(Filing Date: 12-18-2013)

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

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

(Filing Date: 12-18-2013)

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

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

(Filing Date: 12-18-2013)

Hettle v. Construction Contractors Board

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

(Filing Date: 12-18-2013)

Jenkins v. Portland Housing Authority

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

(Filing Date: 12-18-2013)

State v. Ashcroft

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

(Filing Date: 12-18-2013)

State v. Dickerson

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

(Filing Date: 12-18-2013)

State v. Granberry

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

(Filing Date: 12-18-2013)

State v. Guckert

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

(Filing Date: 12-18-2013)

State v. Harris

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

(Filing Date: 12-18-2013)

State v. Langford

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

(Filing Date: 12-18-2013)

State v. Pipkin

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

(Filing Date: 12-12-2013)

Back in Action v. Liberty Northwest Ins. Corp.

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

(Filing Date: 12-11-2013)

Burgdorf v. Weston

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

(Filing Date: 12-11-2013)

Guirma v. O'Brien

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

(Filing Date: 12-11-2013)

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

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

(Filing Date: 12-11-2013)

Greenfield v. Multnomah County

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

(Filing Date: 12-04-2013)

Montara Owners Association v. La Noue Development, LLC

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

(Filing Date: 12-04-2013)

Brown and Brown

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

(Filing Date: 11-27-2013)

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

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

(Filing Date: 11-27-2013)

Hernandez-Nolt v. Washington County

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

(Filing Date: 11-27-2013)

State v. Marino

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

(Filing Date: 11-27-2013)

State v. Parker

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

(Filing Date: 11-27-2013)

State v. Stewart

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

(Filing Date: 11-27-2013)

State v. Watts

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

(Filing Date: 11-27-2013)

Wilson v. Dept. of Corrections

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

(Filing Date: 11-27-2013)

C.P. v. Bernstein

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

(Filing Date: 11-20-2013)

Leloff and Fong

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

(Filing Date: 11-20-2013)

Oregon v. Alarcon

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

(Filing Date: 11-20-2013)

State v. Gillson

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

(Filing Date: 11-20-2013)

State v. Lykins

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

(Filing Date: 11-20-2013)

State v. McClatchey

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

(Filing Date: 11-20-2013)

State v. Meier

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

(Filing Date: 11-20-2013)

State v. Wright

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

(Filing Date: 11-20-2013)

Young v. Davis

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

(Filing Date: 11-20-2013)

Cascade v. Georgia-Pacific

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

(Filing Date: 11-14-2013)

Hale v. State

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

(Filing Date: 11-14-2013)

Logan v. State of Oregon

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

(Filing Date: 11-14-2013)

State ex rel Dewberry v. Kitzhaber

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

(Filing Date: 11-14-2013)

State v. Anderson

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

(Filing Date: 11-14-2013)

State v. Burns

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

(Filing Date: 11-14-2013)

State v. Dorsey

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

(Filing Date: 11-14-2013)

State v. Labar

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

(Filing Date: 11-14-2013)

State v. Lasky

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

(Filing Date: 11-14-2013)

State v. Parsons

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

(Filing Date: 11-14-2013)

State v. Pitts

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

(Filing Date: 11-14-2013)

State v. Tuter

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

(Filing Date: 11-14-2013)

State v. Peterson

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

(Filing Date: 11-06-2013)

Hamlin v. Wilderville Cemetery Association

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

(Filing Date: 10-30-2013)

Pierce and Pierce

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

(Filing Date: 10-30-2013)

Pollock and Pollock

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

(Filing Date: 10-30-2013)

State v. D.P.

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

(Filing Date: 10-30-2013)

State v. Flores

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

(Filing Date: 10-30-2013)

State v. Jackson

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

(Filing Date: 10-30-2013)

State v. Mercier

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

(Filing Date: 10-30-2013)

State v. Steltz

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

(Filing Date: 10-30-2013)

State v. Teixeira

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

(Filing Date: 10-30-2013)

State v. Tidwell

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

(Filing Date: 10-30-2013)

Stuart and Ely

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

(Filing Date: 10-30-2013)

Tough and Tough

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

(Filing Date: 10-30-2013)

York v. Paakkonen

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

(Filing Date: 10-30-2013)

DeArmitt v. Dept. of Corrections

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

(Filing Date: 10-23-2013)

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

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

(Filing Date: 10-23-2013)

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

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

(Filing Date: 10-23-2013)

LaVoie v. Power Auto, Inc.

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

(Filing Date: 10-23-2013)

State v. Farokhrany

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

(Filing Date: 10-23-2013)

State v. King

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

(Filing Date: 10-23-2013)

State v. Olive

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

(Filing Date: 10-23-2013)

State v. Patton

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

(Filing Date: 10-23-2013)

State v. Woodall

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

(Filing Date: 10-23-2013)

Love v. Prime, Inc.

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

(Filing Date: 10-16-2013)

Smith v. TRCI

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

(Filing Date: 10-16-2013)

State v. Cadger

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

(Filing Date: 10-16-2013)

State v. Roelle

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

(Filing Date: 10-16-2013)

State v. Smith

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

(Filing Date: 10-16-2013)

Alcutt v. Adams Family Food Services, Inc.

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

(Filing Date: 10-09-2013)

Garrett Hemann Robertson, P.C. v. Winn

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

(Filing Date: 10-09-2013)

Gilmore and Ambrose

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

(Filing Date: 10-09-2013)

Minihan v. Stiglich

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

(Filing Date: 10-09-2013)

O'Neil v. Martin

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

(Filing Date: 10-09-2013)

State v. Beltran

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

(Filing Date: 10-09-2013)

State v. C.C.

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

(Filing Date: 10-09-2013)

State v. Coughlin

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

(Filing Date: 10-09-2013)

State v. Evilsizer

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

(Filing Date: 10-09-2013)

State v. Goff

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

(Filing Date: 10-09-2013)

State v. Hutton

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

(Filing Date: 10-09-2013)

State v. Sagdal

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

(Filing Date: 10-09-2013)

State v. Taylor

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

(Filing Date: 10-09-2013)

State v. Wallace

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

(Filing Date: 10-09-2013)

State v. Wynne

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

(Filing Date: 10-09-2013)

Clayton v. DAS

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

(Filing Date: 10-02-2013)

Perez v. Persson

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

(Filing Date: 10-02-2013)

State v. Currin

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

(Filing Date: 10-02-2013)

State v. Farmer

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

(Filing Date: 10-02-2013)

Andersen and Andersen

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

(Filing Date: 09-25-2013)

Cascade Physical Therapy v. Hartford Casualty Ins.

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

(Filing Date: 09-25-2013)

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

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

(Filing Date: 09-25-2013)

Grimm v. Board of Parole and Post-Prison Supervision

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

(Filing Date: 09-25-2013)

Hale v. Belleque

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

(Filing Date: 09-25-2013)

Hale v. Belleque

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

(Filing Date: 09-25-2013)

Rains v. Stayton Builders Mart, Inc.

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

(Filing Date: 09-25-2013)

Riemer v. PERB

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

(Filing Date: 09-25-2013)

State v. Fessenden

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

(Filing Date: 09-25-2013)

State v. Holiday

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

(Filing Date: 09-25-2013)

Blue Iguana, Inc. v. Oregon Liquor Control Commission

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

(Filing Date: 09-18-2013)

Salgado and Salgado

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

(Filing Date: 09-18-2013)

State v. Gruver

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

(Filing Date: 09-18-2013)

Cayton v. Safelite Glass Corp.

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

(Filing Date: 09-11-2013)

Daugherty v. SAIF

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

(Filing Date: 09-11-2013)

Epler and Epler

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

(Filing Date: 09-11-2013)

State v. Hurtado-Navarrete

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

(Filing Date: 09-11-2013)

Yi v. City of Portland

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

(Filing Date: 09-11-2013)

Aguilar v. Employment Dept.

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

(Filing Date: 09-05-2013)

Bagley v. Mt. Bachelor, Inc.

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

(Filing Date: 09-05-2013)

Jenkins v. Parole and Post-Prison Supervision

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

(Filing Date: 09-05-2013)

Portland Columbia Symphony v. Employment Dept.

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

(Filing Date: 09-05-2013)

Atkeson v. T & K Lands, LLC

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

(Filing Date: 08-28-2013)

Bridgeview Vineyards, Inc. v. State Land Board

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

(Filing Date: 08-28-2013)

Kennedy v. Wheeler

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

(Filing Date: 08-28-2013)

State v. Beisser

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

(Filing Date: 08-28-2013)

State v. J.N.S

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

(Filing Date: 08-28-2013)

Berg v. Nooth

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

(Filing Date: 08-21-2013)

Quick Collect, Inc. v. Higgins

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

(Filing Date: 08-21-2013)

SAIF Corp. v. Sparks

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

(Filing Date: 08-21-2013)

Sparling v. Providence Health System Oregon

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

(Filing Date: 08-21-2013)

Sparling v. Providence Health Systems

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

(Filing Date: 08-21-2013)

SPS Of Oregon, Inc. v. GDH, LLC

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

(Filing Date: 08-21-2013)

State v. Gonzalez-Valenzuela

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

(Filing Date: 08-21-2013)

State v. Riley

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

(Filing Date: 08-21-2013)

Chelius v. Employment Dept.

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

(Filing Date: 08-14-2013)

Dam v. Board of Parole and Post-Prison Supervision

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

(Filing Date: 08-14-2013)

Dept. of Human Services v. C. F .

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

(Filing Date: 08-14-2013)

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

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

(Filing Date: 08-14-2013)

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

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

(Filing Date: 08-14-2013)

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

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

(Filing Date: 08-14-2013)

Dept. of Human Services v. J. G.

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

(Filing Date: 08-14-2013)

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

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

(Filing Date: 08-14-2013)

Dept. of Human Services v. M. H.

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

(Filing Date: 08-14-2013)

State v. A.D.S.

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

(Filing Date: 08-14-2013)

State v. Bailey

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

(Filing Date: 08-14-2013)

State v. Faubion

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

(Filing Date: 08-14-2013)

State v. Higgins

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

(Filing Date: 08-14-2013)

State v. Huffman

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

(Filing Date: 08-14-2013)

State v. Jones

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

(Filing Date: 08-14-2013)

State v. Stradley

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

(Filing Date: 08-14-2013)

State v. Williams

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

(Filing Date: 08-14-2013)

Stiles v. Godsey

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

(Filing Date: 08-14-2013)

White v. Vogt

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

(Filing Date: 08-14-2013)

Greene v. Homesales, Inc.

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

(Filing Date: 08-07-2013)

Spain v. Jones

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

(Filing Date: 08-07-2013)

State v. Hunter

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

(Filing Date: 08-07-2013)

State v. Roquez

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

(Filing Date: 08-07-2013)

State v. Thomas

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

(Filing Date: 08-07-2013)

State v. Wells

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

(Filing Date: 08-07-2013)

Vigor Industrial, LLC v. Ayres

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

(Filing Date: 08-07-2013)

Multnomah County Corrections v. Multnomah County

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

(Filing Date: 07-31-2013)

State v. Briggs

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

(Filing Date: 07-31-2013)

State v. Klontz

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

(Filing Date: 07-31-2013)

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

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

(Filing Date: 07-31-2013)

Woodroffe v. Nooth

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

(Filing Date: 07-31-2013)

Dept. of Human Services v. N.P.

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

(Filing Date: 07-24-2013)

PacifiCorp v. SimplexGrinnel

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

(Filing Date: 07-24-2013)

State v. Alvarado

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

(Filing Date: 07-24-2013)

State v. Brand

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

(Filing Date: 07-24-2013)

State v. Cupp

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

(Filing Date: 07-24-2013)

State v. Lewis

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

(Filing Date: 07-24-2013)

State v. Wagoner

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

(Filing Date: 07-24-2013)

State v. Whitmore

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

(Filing Date: 07-24-2013)

Kemp v. MasterBrand Cabinets, Inc

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

(Filing Date: 07-17-2013)

OR-OSHA v. Moore Excavation, Inc.

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

(Filing Date: 07-17-2013)

Park v. Dept. of Corrections

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

(Filing Date: 07-17-2013)

Rucker v. Rucker

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

(Filing Date: 07-17-2013)

State v. Finlay

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

(Filing Date: 07-17-2013)

State v. Lubbers

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

(Filing Date: 07-17-2013)

Aponte v. State

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

(Filing Date: 07-10-2013)

Bianco v. DMV Services Division

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

(Filing Date: 07-10-2013)

Bianco v. DMV Services Division

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

(Filing Date: 07-10-2013)

Couey v. Brown

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

(Filing Date: 07-10-2013)

Dept. of Human Services v. R.D.

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

(Filing Date: 07-10-2013)

Lehman v. Bielenberg

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

(Filing Date: 07-10-2013)

Lotches v. Premo

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

(Filing Date: 07-10-2013)

State v. Fredinburg

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

(Filing Date: 07-10-2013)

State v. Gruhlke

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

(Filing Date: 07-10-2013)

State v. Sewell

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

(Filing Date: 07-10-2013)

Waid and Waid

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

(Filing Date: 07-10-2013)

Dept. of Human Services v. M.K.

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

(Filing Date: 07-03-2013)

Shelter Products v. Steelwood Construction

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

(Filing Date: 07-03-2013)

State v. Avila-Nava

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

(Filing Date: 07-03-2013)

State v. May

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

(Filing Date: 07-03-2013)

Baldwin and Baldwin

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

(Filing Date: 06-26-2013)

ODOT v. Singh

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

(Filing Date: 06-26-2013)

State v. Kinslow

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

(Filing Date: 06-26-2013)

State v. Teitsworth

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

(Filing Date: 06-26-2013)

State v. Thompson

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

(Filing Date: 06-26-2013)

Baker v. Liberty Northwest Ins. Co.

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

(Filing Date: 06-19-2013)

Cayton v. Safelite Glass Corp.

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

(Filing Date: 06-19-2013)

Dixon v. Board of Parole and Post-Prison Supervision

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

(Filing Date: 06-19-2013)

Friends of Columbia Gorge v. Columbia River

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

(Filing Date: 06-19-2013)

Kalfas v. Adams

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

(Filing Date: 06-19-2013)

Pearson v. Phillip Morris, Inc.

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

(Filing Date: 06-19-2013)

State of Oregon v. Jeffery Dean Beagley

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

(Filing Date: 06-19-2013)

State v. Beagley

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

(Filing Date: 06-19-2013)

State v. Magana

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

(Filing Date: 06-19-2013)

ZRZ Realty v. Beneficial Fire and Casualty Ins.

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

(Filing Date: 06-19-2013)

Erskine v. Psychiatric Security Review Board

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

(Filing Date: 06-12-2013)

Mendoza v. Liberty Northwest Insurance Corporation

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

(Filing Date: 06-12-2013)

State v. Dierks

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

(Filing Date: 06-12-2013)

Trimet v. Wilkinson

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

(Filing Date: 06-12-2013)

Afzal v. PERB

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

(Filing Date: 06-05-2013)

SAIF Corporation v. Matt Jenkins Contracting

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

(Filing Date: 06-05-2013)

State v. Edblom

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

(Filing Date: 06-05-2013)

State v. Lovaina-Burmudez

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

(Filing Date: 06-05-2013)

Rivas v. Persson

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

(Filing Date: 05-30-2013)

Rivers v. SAIF

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

(Filing Date: 05-30-2013)

State v. Brown

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

(Filing Date: 05-30-2013)

State v. Coronado

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

(Filing Date: 05-30-2013)

State v. Cruz-Gonzalez

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

(Filing Date: 05-30-2013)

State v. Kingsmith

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

(Filing Date: 05-30-2013)

State v. Meza-Garcia

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

(Filing Date: 05-30-2013)

State v. Stubbs

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

(Filing Date: 05-30-2013)

Two Two v. Fujitec

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

(Filing Date: 05-30-2013)

Estacada Rural Fire Dist. #69 v. Hull

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

(Filing Date: 05-22-2013)

McMurchie and McMurchie

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

(Filing Date: 05-22-2013)

State v. Ashbaugh

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

(Filing Date: 05-22-2013)

State v. Milnes

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

(Filing Date: 05-22-2013)

State v. Ross

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

(Filing Date: 05-22-2013)

Walker v. State

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

(Filing Date: 05-22-2013)

Bell v. Tri-Met

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

(Filing Date: 05-16-2013)

Balcom v. Knowledge Learning Enterprises

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

(Filing Date: 05-15-2013)

Campbell v. Employment Department

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

(Filing Date: 05-15-2013)

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

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

(Filing Date: 05-15-2013)

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

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

(Filing Date: 05-15-2013)

Doyle v. City of Medford

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

(Filing Date: 05-15-2013)

Kaptur and Kaptur

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

(Filing Date: 05-15-2013)

Marton v. Ater Construction Co., LLC

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

(Filing Date: 05-15-2013)

PacifiCorp v. SimplexGrinnell

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

(Filing Date: 05-15-2013)

Paton v. American Family Mutual Ins. Co

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

(Filing Date: 05-15-2013)

Schutz v. La Costita III, Inc.

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

(Filing Date: 05-15-2013)

State of Oregon v. Marvin Opitz

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

(Filing Date: 05-15-2013)

State v. Cossette

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

(Filing Date: 05-15-2013)

State v. Danby

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

(Filing Date: 05-15-2013)

State v. M.L.R.

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

(Filing Date: 05-15-2013)

State v. Mccallum

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

(Filing Date: 05-15-2013)

State v. Oneill

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

(Filing Date: 05-15-2013)

Stewart and Stewart

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

(Filing Date: 05-15-2013)

N.J.R. v. Kore

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

(Filing Date: 05-08-2013)

State v. Haney

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

(Filing Date: 05-08-2013)

State v. Monro

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

(Filing Date: 05-08-2013)

State v. Palomo

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

(Filing Date: 05-08-2013)

Davenport v. Premo

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

(Filing Date: 05-01-2013)

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

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

(Filing Date: 04-24-2013)

Dow and Dow

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

(Filing Date: 04-24-2013)

Herald and Steadman

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

(Filing Date: 04-24-2013)

McPhillips Farm, Inc. v. Yamhill County

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

(Filing Date: 04-24-2013)

Miller v. Jones

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

(Filing Date: 04-24-2013)

State v. Bertha

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

(Filing Date: 04-24-2013)

State v. Clark

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

(Filing Date: 04-24-2013)

State v. Erb

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

(Filing Date: 04-24-2013)

State v. Hernandez

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

(Filing Date: 04-24-2013)

State v. Petterson

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

(Filing Date: 04-24-2013)

State v. Saechao

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

(Filing Date: 04-24-2013)

AGAT Transport Inc. v. Employment Department

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

(Filing Date: 04-17-2013)

Department of Human Services v. K. H.

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

(Filing Date: 04-17-2013)

Dept. of Human Services v. M. H.

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

(Filing Date: 04-17-2013)

Hamilton . SAIF Corportaion

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

(Filing Date: 04-17-2013)

Krisor v. Lake County Fair Board

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

(Filing Date: 04-17-2013)

McKinnon v. McKinnon

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

(Filing Date: 04-17-2013)

Silberman-Doney v. Gargan

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

(Filing Date: 04-17-2013)

State v. Cam

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

(Filing Date: 04-17-2013)

State v. Collins

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

(Filing Date: 04-17-2013)

State v. Hooper

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

(Filing Date: 04-17-2013)

State v. Mather

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

(Filing Date: 04-17-2013)

State v. McClure

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

(Filing Date: 04-17-2013)

State v. Middleton

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

(Filing Date: 04-17-2013)

State v. Montgomery

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

(Filing Date: 04-17-2013)

Wah Chang v. PUC

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

(Filing Date: 04-17-2013)

Whalen v. American Medical Response Northwest, Inc.

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

(Filing Date: 04-17-2013)

Greer v. Ace Hardware Corp.

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

(Filing Date: 04-10-2013)

Hatley v. Umatilla County

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

(Filing Date: 04-03-2013)

Krisor v. Henry

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

(Filing Date: 04-03-2013)

Re. v. PERS

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

(Filing Date: 04-03-2013)

State v. Lopez-Cruz

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

(Filing Date: 04-03-2013)

State v. Reed

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

(Filing Date: 04-03-2013)

State v. Tovar

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

(Filing Date: 04-03-2013)

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

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

(Filing Date: 03-27-2013)

Fostveit v. Poplin

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

(Filing Date: 03-27-2013)

Miller v. City of Portland

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

(Filing Date: 03-27-2013)

SAIF Corp. v. Satterfield

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

(Filing Date: 03-27-2013)

State v. Engerseth

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

(Filing Date: 03-27-2013)

State v. Jones

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

(Filing Date: 03-27-2013)

State v. Pinckney

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

(Filing Date: 03-27-2013)

State v. Valle

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

(Filing Date: 03-27-2013)

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

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

(Filing Date: 03-20-2013)

Dexter Lost Valley Community Assn. v. Lane County

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

(Filing Date: 03-20-2013)

Hale v. Belleque

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

(Filing Date: 03-20-2013)

State v. Hickman

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

(Filing Date: 03-20-2013)

Friends of Yamhill County v. Yamhill County

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

(Filing Date: 03-19-2013)

Dial Temporary Help Service v. DLF Int'l Seeds

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

(Filing Date: 03-13-2013)

Saldana-Ramirez v. State of Oregon

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

(Filing Date: 03-13-2013)

State v. Alexander

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

(Filing Date: 03-13-2013)

State v. Ferry

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

(Filing Date: 03-13-2013)

State v. Gerlach

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

(Filing Date: 03-13-2013)

Dept. of Human Services v. A. D.

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

(Filing Date: 03-06-2013)

State v. Painter

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

(Filing Date: 03-06-2013)

State v. Plew

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

(Filing Date: 03-06-2013)

State v. White

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

(Filing Date: 03-06-2013)

ZRZ Realty Company v. Beneficial Fire and Casualty Insurance

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

(Filing Date: 03-06-2013)

Brownstone Homes Condominium Ass'n v. Brownstone Forest Heights, LCC

Insurance Law: If a plaintiff engages in a settlement agreement with a defendant that includes a nonexecution covenant releasing the defendant, any assignment of rights by the defendant for claims against defendant's insurer will be subject to the Stubblefield Rule.

(Filing Date: 02-27-2013)

Doughton v. Morrow

Civil Procedure: Under ORS 12.110, the statute of limitations does not begin to run at the time of discovery of facts that serve only as a trigger a duty to inquire about whether an injury has occurred. For a claim to relate back to the date of the original complaint, the original complaint must put the reasonable defendant on notice of such an additional basis of liability.

(Filing Date: 02-27-2013)

RJ Enterprises LLC of Oregon v. DCBS

Workers Compensation: A person subject to the employer’s direction, control, and who provides services for remuneration is a subject worker within the meaning of workers' compensation law.

(Filing Date: 02-27-2013)

State v. Ehrensing

Criminal Law: The evidence return provisions of the Oregon Revised Statutes require that the person the evidence is returned to be lawfully entitled to possess the evidence. Because possessing marijuana is illegal under federal law, the statute does not require it be returned to a defendant.

(Filing Date: 02-27-2013)

State v. McGee

Criminal Procedure: When applying ORS 135.747 in a motion to dismiss for lack of a speedy trial, the Court uses a two-step approach. First, the Court determines the total amount of delay and subtracts any delay caused by Defendant's application or consent. Second, the Court determines whether the remaining delay is reasonable.

(Filing Date: 02-27-2013)

State v. Pinard

Appellate Procedure: Where the defendant does not raise a merger argument at the trial court, he must establish plain error that is apparent on the record and it must be such that the "legal point is obvious, not reasonably in dispute."

(Filing Date: 02-27-2013)

State v. Stookey

Criminal Procedure: Violating ORS 815.020(1)(a) requires a vehicle to be so sufficiently unsafe that its occupants face a danger of probable harm or loss. A horizontal crack in defendant's windshield did not "endanger any person" under ORS 815.020 and therefore the officer's objective belief was not reasonable.

(Filing Date: 02-27-2013)

Tracy v. Nooth

Appellate Procedure: A court may allow reconsideration to clarify its disposition.

(Filing Date: 02-27-2013)

Dept. of Human Services v. M.E.

Juvenile Law: Under ORS 419B.100(1)(c), the juvenile court has jurisdiction when conditions and circumstances are such that the welfare of the children is endangered. The trial court's decision is reviewed de novo, and is measured by the totality of the circumstances.

(Filing Date: 02-21-2013)

Herring v. American Medical Response Northwest

Remedies: "Vulnerable person" under ORS 124.100 includes a temporary incapacitated person. ORS 124.100(2)(b) unambiguously requires the court to triple noneconomic damages resulting from physical abuse.

(Filing Date: 02-21-2013)

Hostetter v. Board of Parole and Post-Prison Supervision

Parole and Post-Prison Supervision: Under OAR 253-11-004(3), the maximum term of incarceration that may be imposed for any single violation is 90 days for a technical violation, and 180 days for conduct constituting a crime.

(Filing Date: 02-21-2013)

Singh v. McLaughlin

Civil Procedure: A directed verdict by the trial court will be reversed and remanded by the Court of Appeals if the Court find that the plaintiff presented enough evidence for his claims to be evaluated by a jury.

(Filing Date: 02-21-2013)

State v. Pugh

Criminal Law: A person duplicates a sexually explicit image for purposes of ORS 163.684 when he or she downloads it on their personal computer. In addition, venue is proper in the county in which the download took place.

(Filing Date: 02-21-2013)

Byers v. Premo

Post-Conviction Relief: Petitioner must prove by a preponderance of the evidence that his counsel failed to exercise reasonable professional skill and judgment, and that petitioner suffered prejudice as a result. While petitioner satisfied the first prong when his counsel failed to tell him that by stipulating to facts at trial, he could face consecutive sentences, he failed to prove that but for counsel's advice, he would not have agreed to a stipulated facts trial.

(Filing Date: 02-13-2013)

Endres v. DMV

Administrative Law: On judicial review of a final administrative order, the Court of Appeals reviews whether the order is supported by substantial evidence in the record.

(Filing Date: 02-13-2013)

Hughes v. City of Portland

Tort Law: Under ORS 30.275, the tort claims notice requirement, reimbursement to an insurance company counts as partial payment towards plaintiff's claim.

(Filing Date: 02-13-2013)

Malpass and Malpass

Family Law: The proper calculation of the marital portion of husband's pension should use a fraction of the entire actual pension, not a hypothetical pension, and adjust the wife's survivor benefits.

(Filing Date: 02-13-2013)

Papworth v. DLCD

Land Use: Under Section 6(6)(f) of Measure 49, a landowner is not allowed to build more home sites on her property if, at the owner's acquisition date, the zoning ordinance did not allow for the establishment of more dwellings even if a "sunset provision" was present in the zoning ordinance.

(Filing Date: 02-13-2013)

State v. Cluver

Criminal Procedure: Criminal defendants are entitled to have lesser-included offenses included in jury instructions despite the likelihood of being convicted of the greater offense.

(Filing Date: 02-13-2013)

State v. Gilbert

Criminal Procedure: For a jury trial to be properly waived, the defendant must act knowingly and voluntarily and mere reference to such a waiver in the record is not sufficient.

(Filing Date: 02-13-2013)

State v. Pirtle

Criminal Procedure: To fall within the automobile exception to the warrant requirement, the automobile must be mobile at the time the police discover that it was connected with a crime.

(Filing Date: 02-13-2013)

State v. Preuitt

Evidence: An expert witness may not testify as to the credibility of another witness. An expert may testify to matters that would assist a jury in reaching a conclusion, but may not include her own conclusions as to the witness' truthfulness.

(Filing Date: 02-13-2013)

Tilton v. Lee

Attorney Fees: Under ORS 116.103, reduction of a requested attorney fee award by a trial court does not constitute an objection in an estate proceeding.

(Filing Date: 02-13-2013)

Underwood and Mallory

Appellate Procedure: An error will not be reversed on appeal when the party alleging the error was instrumental in bringing it about.

(Filing Date: 02-13-2013)

Grabhorn Inc v. Washington County

Land Use: Courts may not decide land use decisions unless they fall into the exceptions listed in ORS 197.015(b). ORS 197.825 gives Land Use Board of Appeals exclusive jurisdiction over land use decisions.

(Filing Date: 02-12-2013)

Cavitt v. Coursey

Post-Conviction Relief: Under ORS 138.580, "documentary evidence" is satisfied by an affidavit in support of a Petitioner's claim for post-conviction, and is enough evidence to support a claim for relief in Petitioner's claim for post-conviction relief.

(Filing Date: 02-06-2013)

Cron v. Zimmer

Contract Law: An agreement is not fully integrated, and the parol evidence rule does not bar evidence of prior oral agreements, if the prior oral agreement is consistent with the subsequent writing and the prior oral agreement is the kind of agreement that would naturally be made separately from the writing.

(Filing Date: 02-06-2013)

Deberry v. Summers

Civil Procedure: Trial court did not err in granting summary judgment in favor of defendant-attorney after he filed a motion under ORCP 47 E because the witness plaintiff planned to call had no personal knowledge of the events; therefore no genuine issue of material fact existed, and summary judgment was proper.

(Filing Date: 02-06-2013)

Dept. of Human Services v. N. P.

Juvenile Law: A juvenile court may not continue a wardship if the jurisdictional facts on which it is based have ceased to exist.

(Filing Date: 02-06-2013)

Gearhart v. Public Utilities Commission of Oregon

Administrative Law: Unless a court gives direction to the contrary, an agency has discretion to act within its authority, as granted by the legislature.

(Filing Date: 02-06-2013)

State v. Aitken

Criminal Law: Under ORS 161.067(3), criminal violations involving the same conduct against the same victim will merge unless the violations can be separated by a sufficient pause in the defendant's criminal conduct that would allow an opportunity to renounce the criminal intent.

(Filing Date: 02-06-2013)

State v. Cam

Criminal Law: Posting signs identifying one’s property as “private” is insufficient in manifesting a clear intent to exclude casual visitors and therefore evidence obtained from police observations may be admitted.

(Filing Date: 02-06-2013)

State v. Molette

Criminal Procedure: To establish plain error, a defendant must establish that a point of law is obvious, not merely that a point of law is reasonably disputed.

(Filing Date: 02-06-2013)

State v. Roberts

Post-Conviction Relief: A plea of no contest to a municipal violation constitutes a conviction for purposes of expunction under ORS 137.225(5)(e)

(Filing Date: 02-06-2013)

State v. Stephens

Evidence: Evidence of uncharged incidents of sexual conduct between the victim and the defendant are admissible under OEC 404(4).

(Filing Date: 02-06-2013)

Topaz v. Board of Examiners for Engineering

Civil Law: Signing a complaint as "P.E." for professional engineer, when one lacks an active license, in a complaint regarding a public body's sewer rehabilitation plans is enough to constitute a violation of Oregon's professional engineering statute, because there is no mens rea requirement in ORS 672.045.

(Filing Date: 02-06-2013)

Campbell v. State

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

(Filing Date: 01-30-2013)

Franklin v. Employment Dept.

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

(Filing Date: 01-30-2013)

Garner v. Taylor

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

(Filing Date: 01-30-2013)

Ogle v. Nooth

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

(Filing Date: 01-30-2013)

Ross v. Franke

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

(Filing Date: 01-30-2013)

State v. A.J.C.

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

(Filing Date: 01-30-2013)

State v. Nelson

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

(Filing Date: 01-30-2013)

State v. Wesley

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

(Filing Date: 01-30-2013)

Uhl v. Krupsky

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

(Filing Date: 01-30-2013)

Walker v. Providence Health System Oregon

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

(Filing Date: 01-30-2013)

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

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

(Filing Date: 01-30-2013)

City of Harrisburg v. Leigh

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

(Filing Date: 01-16-2013)

Holbrook v. Blacketter

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

(Filing Date: 01-16-2013)

State v. Beck

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

(Filing Date: 01-16-2013)

State v. Maciel

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

(Filing Date: 01-16-2013)

State v. Miller

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

(Filing Date: 01-16-2013)

State v. Weiner

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

(Filing Date: 01-16-2013)

Thomas v. Dept. of Land Conservation and Development

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

(Filing Date: 01-16-2013)

Three Rivers Education Association v. Three Rivers School District

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

(Filing Date: 01-16-2013)

Tran v. Board of Chiropractic Examiners

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

(Filing Date: 01-16-2013)

Walker v. D.M.V.

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

(Filing Date: 01-16-2013)

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

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

(Filing Date: 01-09-2013)

OR-OSHA v. CBI Services, Inc.

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

(Filing Date: 01-09-2013)

PIH Beaverton, LLC v. Super One, Inc.

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

(Filing Date: 01-09-2013)

State v. Johnson

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

(Filing Date: 01-09-2013)

State v. Marshall

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

(Filing Date: 01-09-2013)

State v. Murr

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

(Filing Date: 01-09-2013)

Ballinger v. Nooth

Post-Conviction Relief: Pursuant to ORCP 71 B(1)(a), a petitioner's response to a motion for summary judgment, in a post conviction relief case, must address the merits of the defendant's motion for summary judgment and cannot rely solely on the allegations in the post conviction relief petition.

(Filing Date: 12-27-2012)

Department of Human Services v. T.H.

Juvenile Law: A judgment of the juvenile court is inadequate and not harmless error when the Department of Human Services does not state a compelling reason for the continuation of APPLA.

(Filing Date: 12-27-2012)

Evergreen West Business Center v. Emmert

Remedies: An equitable remedy is not available to a party simply because a jury returns a lesser award than requested. Additionally, 600,000:1 ratio for punitive damages is not excessive when it is necessary to deter future tortious conduct.

(Filing Date: 12-27-2012)

State v. C.E.B.

Juvenile Law: A juvenile court has the authority to dismiss a petition under ORS 419C.261(2) even if the person is no longer under the court's jurisdiction under ORS 410C.005 because they have reached the age of 25.

(Filing Date: 12-27-2012)

State v. Davis

Criminal Procedure: Under ORS 813.150, a defendant has a statutory right to request an independent blood test and be given a reasonable opportunity to obtain that test. Once the request is made, the police officer cannot prevent or hinder the ability of the defendant to obtain the test, however there is no affirmative obligation to help the defendant do so.

(Filing Date: 12-27-2012)

State v. Giles

Sentencing: Defendants that are convicted of murder during the "McClain window" must receive a sentence of 300 months in prison and lifetime post-prison supervision.

(Filing Date: 12-27-2012)

3P Delivery, Inc. v. Employment Dept.

Employment Law: ORS 657.047 does not exempt delivery drivers who lease their equipment to a for-hire carrier from the definition of employment.

(Filing Date: 12-19-2012)

3P Delivery, Inc. v. Employment Dept. Tax Section

Tax Law: A lease-leaseback arrangement does not constitute furnishable title to qualify for a tax exemption under ORS 657.047(1)(b).

(Filing Date: 12-19-2012)

Classen v. Arete NW, LLC

Civil Procedure: A trial court's denial of leave to amend is reviewed for the improper exercise of discretion, which considers: 1) the nature of the proposed amendments and their relationship to the existing pleadings; 2) the prejudice, if any, to the opposing party; 3) the timing of the proposed amendments and related docketing concerns; and 4) the colorable merit of the proposed amendments.

(Filing Date: 12-19-2012)

Dept. of Human Services v. C. L.

Juvenile Law: Evidence of a mother's physical abuse of her child is admissible for the first time at the hearing when the permanency plan at the time of hearing is APPLA and a change to the plan is being made to adoption, as long as there are procedural safeguards in place.

(Filing Date: 12-19-2012)

Dept. of Human Services v. W.H.F.

Indian Law: Under ORS 419B.476(2)(a), DHS is not required to show an active effort to provide remedial services to prevent the break up of an Indian family if the permanency plan at the time of the hearing is adoption.

(Filing Date: 12-19-2012)

Ewald and Ewald

Civil Procedure: Claim preclusion prohibits relitigation of claims that could have been brought in the prior action from being brought in a separate action, but does not bar relitigation of claims raised in the same proceeding before the same court.

(Filing Date: 12-19-2012)

Koller v. Schmaing

Appellate Procedure: Upon filing a notice of appeal, the Court of Appeals has jurisdiction over a case and the trial court retains only limited jurisdiction, which does not include entering corrected judgments under ORCP 71C.

(Filing Date: 12-19-2012)

Lithia Medford LM, Inc. v. Yovan

Remedies: In a small-damages case, punitive damages can exceed a single digit ratio where, in consideration of similar cases and the deterrent function it serves, the punitive damage award is not grossly excessive.

(Filing Date: 12-19-2012)

Pfizer Inc. v. Oregon Dept. of Justice

Trade Secrets: Information is a trade secret and exempt from disclosure under Oregon Public Records Law when there is evidence that it gains its value from not being generally known, and is subject to reasonable efforts to maintain its secrecy.

(Filing Date: 12-19-2012)

State v. Brock

Criminal Procedure: A prior unlawful act will not taint the consent given to authorities unless the Defendant can prove some factual nexus between the unlawful act and the consent given.

(Filing Date: 12-19-2012)

State v. Jepson

Criminal Procedure: Consent is a valid exception to the warrant requirement, except when that consent is acquired by an officer's use of an unconditional statement, which does not invite a response or request consent, that the officer plans to seize evidence.

(Filing Date: 12-19-2012)

State v. Roper

Criminal Procedure: Under State v. Dixson, land outside the curtilage requires signs or barriers to express an intent to keep unwanted visitors out.

(Filing Date: 12-19-2012)

State v. Thompson

Criminal Procedure: When an individual is stopped without a reasonable suspicion, asked for her identification, and questioned without a significant break in time between these events, the stop becomes unlawful and any evidence seized from such an encounter is to be suppressed.

(Filing Date: 12-19-2012)

Browne v. Portland Adventist Medical Center

Civil Procedure: When reviewing the denial of a motion for directed verdict, the evidence is viewed in the light most favorable to the nonmoving party, and the verdict cannot be set aside unless the court can affirmatively say that there is no evidence from which the jury could have the facts necessary to establish the elements of plaintiff's cause of action.

(Filing Date: 12-12-2012)

Bumgarner v. Nooth

Criminal Procedure: The applicable standard as to whether or not counsel has provided a constitutionally adequate defense is whether counsel has exercised "reasonable professional skill and judgment," and that determination is made by the court. Accordingly, a lawyer's failure to present an unsettled question of law may be considered inadequate assistance of counsel.

(Filing Date: 12-12-2012)

State v. Barajas

Criminal Law: Under ORS 137.010(4), the court may revoke probation on a misdemeanor and impose any other sentence that could have been imposed at the original sentencing.

(Filing Date: 12-12-2012)

State v. Baranovich

Criminal Procedure: An incarcerated defendant consents to a delay of trial for other charges when she knowingly fails to make a demand for a speedy trial.

(Filing Date: 12-12-2012)

State v. Beck

Evidence: Officer testimony regarding a defendant's marijuana consumption does not need to be excluded at trial when the basis for the charged DUII is primarily alcohol intoxication, even when the officer did not conduct a complete drug recognition evaluation.

(Filing Date: 12-12-2012)

State v. Coburn

Criminal Procedure: Under ORS 135.747, the speedy trial provision, a delay attributable to the State in bringing an individual to trial is reasonable if it was caused by lack of judicial resources and the delay was less than the applicable statute of limitations.

(Filing Date: 12-12-2012)

State v. Landahl

Appellate Procedure: Under ORS 138.050 (1)(a), if a conviction is not a "disposition" for the purposes of the statute, the Court of Appeals lacks jurisdiction to review the decision of the trial court.

(Filing Date: 12-12-2012)

State v. Naudain

Criminal Procedure: A trial court is not permitted to comment on the evidence, and a court impermissibly comments on evidence when it instructs the jury how evidence relates to a particular legal issue.

(Filing Date: 12-12-2012)

State v. Oidor

Copyright: Federal law, section 301 of the Copyright Act, preempts ORS 164.865(1)(b) because the Federal Act grants exclusive rights to copyright owners while Oregon law grants a similar right to copyright holders.

(Filing Date: 12-12-2012)

Steele and Steele

Family Law: A court may authorize an award of indefinite compensatory and maintenance spousal support if, based on the facts and circumstances of the case, the award provides to both spouses a standard of living roughly similar to the one during marriage.

(Filing Date: 12-12-2012)

Sunset Presbyterian Church v. Brockamp & Jaeger

Civil Procedure: Under the accrual clause of a contract, the statute of limitations for claims tolls until the date of substantial completion, which is the architect's certification date or where the work is sufficiently complete.

(Filing Date: 12-12-2012)

Armenta v. PCC Structural, Inc.

Workers Compensation: A misinterpretation and lack of consideration of a doctor's expert testimony is grounds for reversal of a decision of the Workers' Compensation Board.

(Filing Date: 12-05-2012)

Ayer v. Coursey

Evidence: Under OEC 412(2)(b)(B), evidence of a victim's past sexual behavior is admissible if it is submitted to "rebut or explain scientific or medical evidence offered by the state."

(Filing Date: 12-05-2012)

Christensen and Christensen

Family Law: Under the "just and proper" analysis, the spouse is required to demonstrate that acting "just and proper" would provide the spouse with a greater share of the marital assets.

(Filing Date: 12-05-2012)

D.A. v. White

Civil Stalking Protective Order: Under ORS 163.738, the "official duties" exceptions from ORS 163.755(1)(c), will not apply, effectively barring the use of a work place incident from counting towards the issuance of a stalking protective order, if the Respondent "intended" to intimidate the petitioner with the workplace incident.

(Filing Date: 12-05-2012)

Dept. of Human Services v. M. Q.

Juvenile Law: Child endangerment requires conditions that rise to the level of "being threatened with serious loss or injury." The threat must be current to prove the child is endangered.

(Filing Date: 12-05-2012)

Peace River Seed Co-Operative v. Proseeds Marketing

Contract Law: An ambiguous contractual provision requires the court to determine the parties' intent and use extrinsic evidence, if necessary. If the provision is still ambiguous, the court should use the appropriate maxims of construction.

(Filing Date: 12-05-2012)

Sea River Properties, LLC. v. Parks

Property Law: Land formed by accretion does not belong to the owner in possession of the property when the land forms on top of property already owned by another.

(Filing Date: 12-05-2012)

State v. Beckham

Remedies: For the trial court to impose restitution after the 90 day window provided by ORS 137.106(1)(b), it must be shown that good cause existed for extending the time period.

(Filing Date: 12-05-2012)

State v. Cespedes-Rodriquez

Criminal Law: Under ORS 161.200, after a defendant raises a 'choice of evils' defense, the state must disprove that defense beyond a reasonable doubt. The defense can be disproved if the defendant had the intent to act illegally before the imminent threat of safety existed.

(Filing Date: 12-05-2012)

State v. Contreras

Criminal Procedure: ORS 135.747, the speedy trial provision, regulates only the timing of the first trial and a defendant waives the right to dismiss under this provision if he does not file a motion before the first trial.

(Filing Date: 12-05-2012)

State v. Espinoza-Barragan

Criminal Procedure: Nervousness and driving a vehicle recently purchased with cash are not sufficient to give rise to reasonable suspicion of criminal activity, which would justify the extension of a valid stop.

(Filing Date: 12-05-2012)

State v. Febuary

Evidence: Testimony of a prior incident of sexual abuse must carry a sufficient concurrence of common features for it to be admissible as noncharacter evidence under OEC 404.

(Filing Date: 12-05-2012)

State v. Kowlaskij

Criminal Law: When a person is charged with identity theft under ORS 165.800, the charging document's failure to identify the alleged victim who was injured or who was intended to be injured is not a material variance under ORS 135.725.

(Filing Date: 12-05-2012)

State v. Ovendale

Evidence: Physical evidence giving rise to a "sexual abuse" diagnosis avoids the proscription in Southard when its significance is of the sort that requires a complex factual determination by an expert rather than a lay person, it corroborates the type of abuse alleged, and the medical expert relies on the physical evidence in making the diagnosis.

(Filing Date: 12-05-2012)

V.A.N. v. Parsons

Civil Stalking Protective Order: ORS 30.866 requires that evidence in support of a stalking order prove that the contact reveals an unequivocal threat that instills a fear of serious and physical injury from the speaker that is objectively likely to be followed by unlawful acts. Without other evidence, a threat to "confront" a person does not involve violence or other unlawful acts.

(Filing Date: 12-05-2012)

Chou v. Farmers Ins. Exchange

Insurance Law: Clauses found in a homeowner's insurance policy that are ambiguous as to their application will be construed against the policy drafter.

(Filing Date: 11-21-2012)

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

Juvenile Law: Despite compliance with a juvenile court't requirements to remove an abusive spouse from the home and submit a safety plan to keep the abused child out of contact with abusive parent, a juvenile court is reasonable in denying a father's motion to dismiss the wardship because the father never acknowledged that the abusive parent caused injury to the child and because the safety plan was not in writing and not yet implemented.

(Filing Date: 11-21-2012)

Oregon Education Association v. Parks

Civil Procedure: Under ORS 31.150(3), the reasonable juror standard is sufficient to satisfy a court's conclusion that there was enough evidence to support a prima facie case.

(Filing Date: 11-21-2012)

State v. Canfield

Criminal Procedure: Consent to search, given before a suspect was told he was free to leave by the officer who stopped him, is an illegal search unless there is a warrant or reasonable suspicion.

(Filing Date: 11-21-2012)

State v. Rennells

Criminal Procedure: Under the emergency aid exception to the warrant requirement, officers may enter an area when they have articulable facts indicating a person is threatened with serious physical injury or harm.

(Filing Date: 11-21-2012)

State v. Zolotoff

Criminal Law: If evidence in the record supports a jury instruction of a lesser-included offense, the State is required to give the instruction to ensure that the jury has a complete statement of the law.

(Filing Date: 11-21-2012)

Dept of Human Services v. J.N.

Juvenile Law: Before denying a permanency plan of reunification, the juvenile court must establish that the evidence shows the plan will cause severe mental and emotional harm to the child.

(Filing Date: 11-15-2012)

Jensen v. DuBoff

Civil Procedure: A trial court abuses its discretion when it dismisses a complaint with prejudice when it has not adequately considered the 4 factors in Ramsey v. Thompson.

(Filing Date: 11-15-2012)

Macnab v. State

Civil Procedure: Under ORS 30.275(9), the two year statute of limitations on a claim of false imprisonment begins to run from the date when the plaintiff is aware of the facts necessary to prove liability.

(Filing Date: 11-15-2012)

Schutz v. SAIF Corp.

Workers Compensation: Under ORS 656.005(7)(a), even if an employee's primary motive for engaging in any social activities outside of the work environment was work related, the employee's choices to drink enough to be intoxicated and then drive home are not work related and thus any injury sustained did not arise from employment. Therefore, workers compensation will not be available for an injured worker in this situation.

(Filing Date: 11-15-2012)

State v. Huff

Criminal Procedure: Officer's search warrant affidavit based on a small amount of drugs for personal use, combined with evidence that defendant and his roommate are both on post-prison supervision for drug possession, is not enough, by itself, to establish probable cause. The affidavit must provide enough facts to permit a magistrate reasonably to conclude that it is more likely than not that additional evidence of criminal drug activity will be found.

(Filing Date: 11-15-2012)

Truck Insurance Exchange v. Friend

Civil Procedure: Summary judgment should not be granted where genuine issues of material fact have not been resolved.

(Filing Date: 11-15-2012)

A & E Security and Electronic Solutions, Inc. v. Fortalesa, Inc.

Attorney Fees: Under ORS 20.083, attorney fees may be awarded under provisions in a rescinded contract. ORS 20.083 was enacted to restore full reciprocity for awarding attorney fees and it is not limited by the examples in the explanatory clause.

(Filing Date: 11-07-2012)

Dept. of Human Services v. C. C.

Juvenile Law: Under ORS 419B.340(2), the court shall enter a description of what efforts were made to reunite the family and what could have prevented the separation of the family.

(Filing Date: 11-07-2012)

Dept. of Human Services v. M.M.B.

Juvenile Law: An order for guardianship will be upheld if the juvenile court makes the necessary findings of fact as laid out in ORS 419B.476.

(Filing Date: 11-07-2012)

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

Juvenile Law: Jurisdiction in custody cases involving multiple jurisdictions is determined by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), ORS 109.701 to 109.834. Pursuant to ORS 109.741(1), the court may make an initial custody determination.

(Filing Date: 11-07-2012)

Johnson v. Dept. of Public Safety Standards and Training

Criminal Procedure: ORS 135.970(2) imposes a duty solely on the defense attorney to inform a crime victim of the “identity and capacity of the person contacting the victim” and the victim’s other rights under the statute. A crime victim’s constitutional right to refuse an interview request does not include an obligation on the person seeking the interview to inform the victim of that right.

(Filing Date: 11-07-2012)

Oregon Education Ass'n v. Oregon Taxpayers United

Civil Procedure: Under the law of the case doctrine, if an earlier ruling was necessary to the adjudication of an issue before the court, it is binding and conclusive upon both the inferior court in any further steps or proceedings in the same litigation and upon the appellate court itself in any subsequent appeal or other proceeding for review.

(Filing Date: 11-07-2012)

Richardson v. Oregon Dept. of Transportation

Administrative Law: ORS 809.440(2)(b) does not create an exclusive list of defenses to DMV actions. ORS 809.440(2)(b) merely states possible defenses to a department's actions.

(Filing Date: 11-07-2012)

SERA Architects, Inc. v. Klahowya Condominium, LLC

Remedies: Pursuant to the Construction Lien Law under ORS 87.005-87.060, a construction lien, if perfected by filing a claim of lien, relates to and encumbers a property as of the beginning of construction or the delivery of materials. Separately, in order to triumph on the affirmative defense of equitable subrogation, a lender must prove that it was ignorant to the existence of an intervening lien, and that its ignorance was not the result of inexcusable ignorance.

(Filing Date: 11-07-2012)

State v. Barboe

Criminal Law: Under ORS 161.155, Oregon does not recognize the aid-and-abet theory when the Defendant did not plan or commit the crime in question.

(Filing Date: 11-07-2012)

State v. Bircher

Criminal Procedure: Delay in court scheduling that can be attributed to the state is reasonable under ORS 135.747 if it does not fall "outside the norm of acceptable court scheduling practices."

(Filing Date: 11-07-2012)

State v. Bradley

Evidence: OEC 803(18a)(b) intends to ensure an opposing party has reasonable time to prepare for trial in response to hearsay statements made by a victim by requiring notice to the opposing party no later than fifteen days before trial. At a minimum, the rule requires identification of the witness or the means that will be used to introduce the hearsay statement as well as the substance of the hearsay statement or how it will be introduced.

(Filing Date: 11-07-2012)

State v. Carroll

Criminal Law: Diversion is not a defense to DUII and the amended criteria for diversion eligibility does not increase DUII punishment.

(Filing Date: 11-07-2012)

State v. G.L.D.

Juvenile Law: The antimerger statute applies whenever there is a common victim and charge if there are repeated violations separated by enough time for the defendant to renounce his criminal intent. Additionally, evidence to prove market value for purposes of a theft charge may include evidence regarding replacement costs of the property. Finally, for purposes of restitution, the juvenile code references the criminal code and includes insurance companies as victims.

(Filing Date: 11-07-2012)

State v. Hansen

Criminal Procedure: A variance between an indictment and the statute under which Defendant was charged, leads to an acquittal where Defendant has been prejudiced by the discrepancy.

(Filing Date: 11-07-2012)

State v. Hudson

Criminal Procedure: Trial court properly denied a motion to suppress when Defendant was properly seized, police entered the house under exigent circumstances, police properly read Defendant his Miranda warnings, and asked only clarifying questions after Defendant equivocally invoked his right to counsel.

(Filing Date: 11-07-2012)

State v. Johnson

Criminal Procedure: When the original trial is brought within a reasonable period of time, ORS 135.747 does not regulate the timing of the second trial in the same criminal proceeding.

(Filing Date: 11-07-2012)

State v. Wright

Criminal Law: For first-degree criminal mistreatment, "physical injury" is an impairment of a physical condition or a substantial amount of pain. Impairment of a physical condition is harm to the body or an inability to use the body or a bodily organ for a certain period of time.

(Filing Date: 11-07-2012)

Compressed Pattern, LLC v. Employment Dept. Tax Section

Employment Law: Under ORS 670.600(3), a person has an independently established business when his work location is both maintained and separate from the person for whom he is providing services.

(Filing Date: 10-31-2012)

B.A. v. Webb

Evidence: Under OEC 403, a witness may not comment on the credibility of another witness and a diagnosis of sexual abuse without any physical evidence is not admissible.

(Filing Date: 10-24-2012)

Cherry v. Dept. of Education

Administrative Law: A proposed final order revoking a bus driver's certificate is not arbitrary and capricious if the rule provides the agency with discretion in doing so, and there is no other agency rule, policy, or practice inconsistent with the exercise of that discretion.

(Filing Date: 10-24-2012)

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

Family Law: The appointment of a guardian ad litem for an individual will be upheld if sufficient evidence is shown that the guardian ad litem is necessary to advance the individual's interests.

(Filing Date: 10-24-2012)

Ivers v. Salladay

Civil Procedure: ORCP 68 does not apply when there is not a substantive right to recover attorney fees. It would be contrary to the structure and purpose of UTMA to apply ORCP 68.

(Filing Date: 10-24-2012)

Lucas v. Lake County

Civil Procedure: A suit between two parties is not barred by claim preclusion when there is prior litigation between the parties that arose from a different transaction. Additionally, a claim is wrongfully dismissed when the amended complaints were consistent in showing the discharge offends public policy.

(Filing Date: 10-24-2012)

Oregonian Publishing Co., LLC v. Waller

Civil Procedure: Seeking declaratory relief in Circuit Court, under Oregon Public Records Law, challenging a Judge's refusal to publicly release a juvenile court order, is not a substitute for judicially appealing the Judge's determination not to release the order.

(Filing Date: 10-24-2012)

Oregon Pipeline Company, LLC v. Columbia Riverkeeper

Administrative Law: Pursuant to ORS 197.825, a county's withdrawal of a decision for reconsideration of a matter that is currently being appealed to the Land Use Board of Appeals (LUBA) does not divest LUBA of exclusive jurisdiction over that matter.

(Filing Date: 10-24-2012)

State v. Benner

Criminal Procedure: There must be sufficient evidence to establish if a defendant or his counsel intentionally waived the right to a 90-day speedy trial.

(Filing Date: 10-24-2012)

State v. Eshaia

Attorney Fees: Evidence that a defendant is receiving income through disability payments is sufficient evidence for a trial court to impose attorney's fees under the "is" or "may be able" to pay standard.

(Filing Date: 10-24-2012)

State v. Garner

Criminal Law: Under ORS 135.747, a defendant is considered "brought to trial" when the trial commences, even if it eventually ends in a mistrial.

(Filing Date: 10-24-2012)

State v. Glazier

Criminal Law: Injuries making it more difficult for a victim to engage in normal activities constitutes "physical injury" under ORS 161.015(7) and a hardwood floor is a "dangerous weapon" under ORS 161.015(1) because under the circumstances it was capable of causing severe physical injury. Merger is appropriate under ORS 161.067 for violations arising from the same conduct or criminal episode when there was no evidence to indicate that one assault had ended before another began.

(Filing Date: 10-24-2012)

State v. J.S.

Civil Commitment: For involuntary commitment cases based on a mental disorder, the state must prove by clear and convincing evidence that the defendant''s mental disorder would cause him to inflict danger to himself or to others in the near future.

(Filing Date: 10-24-2012)

State v. Knapp

Criminal Procedure: An unlawful search has been conducted during a traffic stop when a police officer ceases processing the infraction and delays the stop to perform a search. Evidence found during the unlawful search can be suppressed by a passenger of the vehicle who was unlawfully detained, provided a factual nexus can be shown between the unlawful search and the finding of the evidence.

(Filing Date: 10-24-2012)

State v. Musser

Criminal Law: Under ORS 164.245, criminal trespass in the second degree is measured under an objectively reasonable person standard, and under ORS 131.605(6) an officer must have a reasonable suspicion of criminal activity to make a stop. Evidence discovered during an illegal stop is inadmissible.

(Filing Date: 10-24-2012)

State v. Pickle

Criminal Procedure: Opening the trunk of a vehicle for a police officer and holding it open is a manifestation of consent to search the vehicle.

(Filing Date: 10-24-2012)

State v. Powell

Sentencing: A sentence is excessive if the term of post-prison supervision, when added to a prison term, exceeds the statutory maximum for the crime of conviction. However, the error is harmless when it does not result in any adverse consequences or will not improve the defendant's position.

(Filing Date: 10-24-2012)

State v. Richardson

Evidence: The state-of-mind exception to the hearsay rule, OEC 803(3), does not allow for the admission into evidence of statements displaying a persons recollection of past intent and their subsequent current conclusions based on that intent.

(Filing Date: 10-24-2012)

State v. Sullivan

Evidence: Alternative evidence of a single factual occurrence may be offered to prove an element of a crime.

(Filing Date: 10-24-2012)

State v. Wood

Evidence: Under OEC 803(18) hearsay concerning sexual abuse may be admitted when the prosecution gives pretrial notice of the statement. The proponent must identify the statement, the substance of the statement, and the means by which the statement will be introduced.

(Filing Date: 10-24-2012)

State v. Ziska

Criminal Law: Under ORS 166.220(1)(a), the "use" of a weapon can be described as either actual use or the immediate threat to use the weapon.

(Filing Date: 10-24-2012)

U.S. Bank National Assn. v. Wright

Property Law: When the plaintiff's complaint and the defendant's answer both raise an issue as to the validity of a trustee's deed, a motion for summary judgment is wrongfully entered without inquiring whether the trustee's sale actually occurred.

(Filing Date: 10-24-2012)

Wright v. Turner

Insurance Law: A plaintiff who seeks insurance benefits claiming two accidents has the burden of presenting at least prima facie evidence of both accidents and that the two collisions had distinctly different causes; the second accident cannot be a proximate result of the first.

(Filing Date: 10-24-2012)

Enterprise Rent-A-Car Co. of Oregon v. Frazer

Workers Compensation: The mere fact of employer control over the injury location is insufficient to establish compensability of the injury. The Workers' Compensation Board is bound to apply the "going and coming" rule where an employee sustains an injury while traveling to or from work outside the course of employment. The injury will not be compensable unless the circumstances surrounding the injury fall within an exception to the rule.

(Filing Date: 10-17-2012)

State v. Davis

Criminal Law: A jury instruction is erroneous when defining recklessness in criminal mischief as relating to a particular circumstance rather than only to the resulting damage.

(Filing Date: 10-17-2012)

State v. Kaylor

Criminal Law: Under ORS 163.205(1)(a), criminal mistreatment in the first degree, an offender must affirmatively withhold something from the victim for it to be considered first-degree criminal mistreatment. Secondly, under ORS 162.285(1)(a), tampering with a witness, a defendant must reasonably and specifically believe that the victim will be called to testify at an official proceeding at the time the statements were made.

(Filing Date: 10-17-2012)

State v. Penney

Criminal Procedure: Although a decision regarding what citation to issue gives a police officer discretion regarding whether the vehicle at issue will be impounded, such discretion is constitutionally permissible.

(Filing Date: 10-17-2012)

State v. Smith

Criminal Law: Once a defendant who has wrongfully appropriated items has been notified that a victim considers property to be stolen, the defendant can no longer claim he did not have knowledge that the items were stolen.

(Filing Date: 10-17-2012)

State v. White

Evidence: Expert testimony regarding delayed reporting of sexual abuse by a child is relevant to explain why there was a delay in reporting by complainant and to counter a possible argument that the delay indicates a fabrication.

(Filing Date: 10-17-2012)

Hall v. ODOT

Property Law: Planning to regulate property does not amount to a taking even if the planning might reduce the property's value unless the property owner loses all "economically feasible private uses."

(Filing Date: 10-10-2012)

Koch v. State

Post-Conviction Relief: Defense counsel's advice that Defendant should proceed with a stipulated facts trial was incorrect when counsel neither disputed those facts, nor presented any evidence to the contrary.

(Filing Date: 10-10-2012)

Purdy v. Deere and Co.

Tort Law: When a jury is presented with compound questions that address both the standard of care and causation, the appellant must establish that the jury did not decide the case on causation.

(Filing Date: 10-10-2012)

State v. Kuehner

Criminal Procedure: The State may not recover unforeseen expenses related to overtime salary of police officers.

(Filing Date: 10-10-2012)

Cornus Corp. v. GEAC Enterprise Solutions, Inc.

Civil Procedure: The claim preclusive effect of a federal court's judgment is governed by Oregon's claim preclusion law, which states that a claim brought in federal court is not barred in state court unless it was adjudicated on the merits.

(Filing Date: 10-03-2012)

Horton v. Nelson

Attorney Fees: Under ORS 20.105, a defendant has been wrongly awarded attorney fees as the prevailing party when the trial court erred in dismissing the plaintiff's complaint.

(Filing Date: 10-03-2012)

Nichols v. Employment Dept

Employment Law: Proceedings that derive from ORS 657.270, ORS 657.275, and ORS 657.292, may be used under ORS Chapter 657 for the purposes of preclusion.

(Filing Date: 10-03-2012)

State v. Tilden

Appellate Procedure: The Court of Appeals may review for plain error, despite the fact that the defendant did not make an explicit request for review for plain error, when the requirements in ORAP 5.45 are met in the brief

(Filing Date: 10-03-2012)

Blank v. US Bank of Oregon

Workers Compensation: A work related injury is not compensable if it is equally possible that work-related factors or idiopathic factors caused the injury.

(Filing Date: 09-26-2012)

Derschon v. Belleque

Post-Conviction Relief: In order to prove ineffective or inadequate assistance of trial counsel at a post-conviction relief hearing, a petitioner must show that: (1) the counselor’s performance was unreasonable, and (2) the counselor’s unreasonable performance prejudiced the outcome of the trial.

(Filing Date: 09-26-2012)

Dial Temporary Help Service v. DLF Int'l Seeds

Contract Law: Where the parties disagree as to the limitations of damages in the contract and where both parties constructions are plausible, absent extrinsic evidence, the parties will construe the ambiguity against the drafter.

(Filing Date: 09-26-2012)

Morton and Morton

Family Law: With regards to an inheritance, a party may rebut the presumption of equal contribution towards marital assets by demonstrating that one spouse did not contribute to acquiring the inheritance and that an intestate decedent's donative intent was that the spouse be excluded.

(Filing Date: 09-26-2012)

Pine Ridge Park v. Fugere

Civil Procedure: When a superdeas undertaking is filed per ORS 19.335(2), the 60-day limit on issuance of process to enforce a judgment under ORS 105.159(3) is tolled.

(Filing Date: 09-26-2012)

Providence Health System Oregon v. Walker

Administrative Law: ORS 656.262(7)(c) requires an insurer or self-insured employer to reopen a claim for processing upon "any finding" of compensability, regardless of any appeal or possibility of review. Additionally, a penalty and attorneys fees cannot be imposed when the employer had a legitimate doubt as to its obligations.

(Filing Date: 09-26-2012)

SAIF v. Ramos

Workers Compensation: The Worker’s Compensation Board (board) is permitted to rely on a medical arbiter’s examination, even where such examination had been cancelled by the Appellate Review Unit; and render a claimant’s condition as “medically stationary” so long as the subsequent treatments are solely to improve claimant’s functional abilities.

(Filing Date: 09-26-2012)

State v. C. S.

Appellate Procedure: An issue cannot be raised on appeal that was not preserved at the trial court. Additionally, if an error is reasonably in dispute, it cannot be plain error on the face of the record.

(Filing Date: 09-26-2012)

State v. Ellis

Criminal Procedure: Whether a stop is lawful is based upon the officer's objectively reasonable belief that a crime has been committed. The possibility of alternative explanations for the defendant's conduct does not negate the reasonableness of the suspicion a crime has occurred.

(Filing Date: 09-26-2012)

State v. Fuller

Criminal Procedure: In criminal charges that are tried as violations, the right to trial by jury and proof of guilt beyond a reasonable doubt are retained if there exist too many characteristics of a criminal prosecution to deny those rights.

(Filing Date: 09-26-2012)

State v. Ordner

Criminal Procedure: A motion to suppress evidence is properly denied when the record sufficiently establishes that a police officer had probable cause for a traffic stop.

(Filing Date: 09-26-2012)

State v. Peterson

Criminal Procedure: When determining a motion to dismiss under a speedy trial argument, the court must determine the length of the delay minus any periods of delay that the defendant consented to. Then, the court must determine whether the delay was reasonable after viewing the circumstances as a whole.

(Filing Date: 09-26-2012)

State v. Smith

Criminal Procedure: A person is reasonable in believing that his liberty is being violated and that he is not free to leave when police officers take away his license, ask him to stand next to the police car, and block the exit from the area.

(Filing Date: 09-26-2012)

State v. Stephens

Criminal Procedure: When analyzing a motion to dismiss based on a speedy trial argument, a court must determine the length of the delay and whether the defendant consented to the delay. Then, the court must determine whether the delay was reasonable given the circumstances.

(Filing Date: 09-26-2012)

State v. Turner

Criminal Procedure: Under State v. Glushko/Little, failure to appear does not equal the defendant's consent to a delay for the purposes of ORS 135.747. The Court may also look to the cause of the delay in determining whether the Defendant was brought to trial in a reasonable amount of time.

(Filing Date: 09-26-2012)

State v. Unger

Criminal Procedure: Consent to search a residence is invalid if it is obtained after officers have illegally trespassed in the individual's backyard therefore making any evidence that results from the consent inadmissible.

(Filing Date: 09-26-2012)

State v. Wall

Criminal Procedure: In order for a criminal defendant to be required to wear restraints at his or her trial, whether the restraints are visible or not visible, the state must adduce evidence that would permit the court to find that the defendant poses an immediate or serious risk of committing dangerous or disruptive behavior, or that he or she poses a serious risk of escape.

(Filing Date: 09-26-2012)

Zabriskie v. Lowengart

Civil Procedure: Under ORS 12.110(4), the statute of limitations period begins to run when a plaintiff should have discovered an injury that arose from the allegedly negligent medical care.

(Filing Date: 09-26-2012)

Bertsch v. DLCD

Land Use: In order to obtain just compensation allowed by Measure 49, the property owner must show, more likely than not, the conditions in place were actually satisfied during the time when the county could have authorized a dwelling. A party is not allowed to currently attempt to satisfy historical conditions.

(Filing Date: 09-19-2012)

Bostwick v. Coursey

Post-Conviction Relief: When defense counsel fails to ask the court to consider lesser-included offenses, a criminal defendant is entitled to post-conviction relief.

(Filing Date: 09-19-2012)

Dept. of Human Services v. H.P.

Juvenile Law: When entering judgments regarding a child's permanency plan, the trial court must attach a fact finding report from the Department of Human Services; otherwise the judgment does not satisfy statutory requirements.

(Filing Date: 09-19-2012)

Hatkoff v. Portland Adventist Medical Center

Alternative Dispute Resolution: A prescribed grievance and arbitration procedure will not be found unconscionable when the means used to gain plaintiff's agreement to the procedure were themselves not unconscionable.

(Filing Date: 09-12-2012)

Johnson v. Sunriver Resort Limited Partnership

Civil Procedure: A party's neglect to file a timely response to a complaint may be excusable when reasonable steps were taken to ensure that a response would be filed.

(Filing Date: 09-12-2012)

Providence Health Plan v. Winchester

Insurance Law: An insurer may not seek reimbursement out of the settlement its insured receives from settlements with 3rd parties until interinsurer reimbursement is no longer available, and it is available so long as no settlement has occurred. An insurer that begins to seek reimbursement before its insured and 3rd party insurers settle will be unable to recover expenses from its insured.

(Filing Date: 09-12-2012)

Spaid v. 4-R Equipment, LLC

Civil Law: A trial court does not err by declining to award prejudgment interest when the jury does not resolve issues of fact with regard to the award of prejudgment interest, unless the pertinent facts were undisputed.

(Filing Date: 09-12-2012)

State v. Farrar

Criminal Law: For reasonable suspicion, an officer must subjectively believe a person has committed a crime and that belief under the totality of the circumstances must be objectively reasonable. In addition, the officer must point to specific facts demonstrating a crime was committed or the person was about to commit a crime.

(Filing Date: 09-12-2012)

State v. Fuller

Criminal Law: The evanescent nature of drugs in a suspect’s body creates an exigent circumstance that will ordinarily permit a warrantless urine sample. However, if a warrant could have been obtained and executed faster than the time it took to process the suspect and obtain a urine sample, the warrantless seizure of that sample is unconstitutional.

(Filing Date: 09-12-2012)

State v. Lorenzo

Criminal Procedure: Consent to search without a warrant is invalid if it is the result of previous unlawful police conduct.

(Filing Date: 09-12-2012)

Warren v. Imperia

Evidence: The informed consent of a patient, in a medical malpractice claim, may be excluded from trial because its probative value is outweighed by its prejudicial effect.

(Filing Date: 09-12-2012)

State v. Hale

Criminal Procedure: Determining whether a magistrate is neutral and detached requires that the magistrate: (1) be uninvolved in law enforcement, and (2) not have an interest in the case that would corrupt an average judge under similar circumstances.

(Filing Date: 09-06-2012)

Devin Oil Co. v. Morrow County

Land Use: A county may adopt a limited use overlay zone with exceptions even if there are other options that could have satisfied the TPR.

(Filing Date: 08-29-2012)

McCollum v. DLCD

Land Use: Under Measure 49 and SB 1049, the number of homesite approvals a landowner may obtain is limited in proportion by acreage, unless the landowner otherwise qualifies for relief under Section 6(3) of Measure 49.

(Filing Date: 08-29-2012)

NW Property Wholesalers v. Spitz

Civil Procedure: Pursuant to ORS 86.750, notice of sale to be served on an occupant of property, in order to terminate that person's interest in the property, must be done in the manner in which a summons is served under ORCP 7 D.

(Filing Date: 08-29-2012)

Pereida-Alba v. Coursey

Post-Conviction Relief: Defense counsel's failure to request a jury instruction on a lesser-included offense is demonstrative of a lack of professional skill and is prejudicial to the client.

(Filing Date: 08-29-2012)

Pincetich v. Nolan

Contract Law: ORS 701.131(2)(c) applies to construction defects and services contributing to the defects, and does not include the failure to make payments on work performed.

(Filing Date: 08-29-2012)

SAIF Corp. v. Banderas

Workers Compensation: When a preponderance of medical evidence establishes the attending physician's findings are more accurate and have not been rebutted by a medical arbiter panel, a review board may favor the physician's findings rather than the medical arbiter panel.

(Filing Date: 08-29-2012)

State v. Dawson

Criminal Procedure: Under ORS 137.020, following a guilty plea or verdict, there shall be at least two calendar days between the time of verdict and sentencing.

(Filing Date: 08-29-2012)

State v. Erives

Appellate Procedure: The Court of Appeals will not find plain error in not providing a defendant with an interpreter for the complete trial if the defendant has spoken to the court in English, has communicated with his counsel in English, and neither the defendant nor his counsel asked the court for an interpreter.

(Filing Date: 08-29-2012)

State v. Jackson

Criminal Law: A defendant is entitled to an instruction on a lesser-included offense when the requisite mental state is a disputed issue of fact that would allow the jury to find that all the elements of the greater offense have not been proven, but that all the elements of one or more of the lesser offenses have been proven.

(Filing Date: 08-29-2012)

State v. Mazzucchi

Criminal Procedure: Absent any force or coercion by police, there exists no restriction of an individual's liberty or freedom of movement; therefore, there is no seizure for purposes of Article I, Section 9 of the Oregon Constitution.

(Filing Date: 08-29-2012)

State v. McIntyre

Evidence: Evidence offered under OEC 404(3) of defendant's "other crimes, wrongs, or acts" must satisfy a five factor test to demonstrate the "other acts" are necessarily similar to the crime charged in order to be precluded from exclusion under OEC 404(4).

(Filing Date: 08-29-2012)

State v. Nichols

Evidence: Under OEC 702, an expert's testimony, if believed, must be of help or assistance to the jury. When the expert fails to show a connection between the opinion and the testimony to the facts, then the court may use it's discretion to exclude it.

(Filing Date: 08-29-2012)

State v. Soto

Criminal Procedure: An unlawful seizure occurs when, without justification, the totality of a police officer's actions have led a person to reasonably believe that their liberty or freedom of movement was restricted by the officer's show of authority.

(Filing Date: 08-29-2012)

State v. Walker

Criminal Law: A racketeering charge under ORS 166.720(3) requires the defendant to have participated in an enterprise, which is an on-going organization with continuity, and that organization is distinct from the criminal acts.

(Filing Date: 08-29-2012)

State v. Wentworth

Criminal Procedure: Under ORS 811.370, a state police trooper has probable cause to believe an infraction has been committed when a motorist crosses a road’s white fog line with his or her vehicle’s tire.

(Filing Date: 08-29-2012)

Tracy v. Nooth

Post-Conviction Relief: Under ORCP 55 (C)(2), a post-conviction court must issue a subpoena duces tecum to the party requesting it.

(Filing Date: 08-29-2012)

Bedford v. Merety Monger Trust

Attorney Fees: For purposes of ORS 20.080, which grants attorney fees for small claims, the relief sought by alternative theories of relief is not aggregated to see if the relief sought exceeds the maximum for ORS 20.080. On the other hand, multiple claims arising from the same operative facts are aggregated.

(Filing Date: 08-22-2012)

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

Indian Law: Per the Indian Child Welfare Act, a permanency hearing involving a tribal member requires active efforts to reunify the family. Active efforts means the Department of Human Services must actually assist in the reunification process.

(Filing Date: 08-22-2012)

Halone’s Auto Repair v. B & R Auto Wrecking

Attorney Fees: When a trial court’s judgment cites multiple authorities for awarding attorney fees, the rejection of one cited basis does not render the trial court’s judgment erroneous.

(Filing Date: 08-22-2012)

Smith v. Dept. of Corrections

Administrative Law: Under ORS 183.310(9), a rule of conduct for individuals who are in the custody of the Department of Corrections does not need to be promulgated pursuant to the APA.

(Filing Date: 08-22-2012)

State v. Fivecoats

Evidence: A demonstration of a physical condition or attribute in court is not regarded as testimony and does not waive the right against self-incrimination.

(Filing Date: 08-22-2012)

State v. Nyhuis

Criminal Law: With regard to reckless burning under ORS 164.335(1), the term "property" means something that has market value or has a replacement cost. In order for the replacement cost alternative to be used, some other person must have a legal or equitable interest in it.

(Filing Date: 08-22-2012)

State v. Pollock

Criminal Procedure: When an out of court statement is permitted into trial and the opposing party has been provided with an opportunity for in-court cross-examination, their Sixth Amendment Right under the Confrontation Clause is not violated.

(Filing Date: 08-22-2012)

Vukanovich v. Kine

Contract Law: Pursuant to ORS 93.740, in order to assert a valid claim of lis pendens, a party to a purchasing agreement must have had a present interest in the discussed property at the time of the agreement.

(Filing Date: 08-22-2012)

Allen v. Premo

Appellate Procedure: Where the Court of Appeals issues a decision of remand, the lower court shall act as if the original proceedings did not occur and a new trial has been ordered.

(Filing Date: 08-15-2012)

Berry and Huffman

Attorney Fees: ORS 107.104 does not entitle a prevailing party to recover attorney fees in absence of independent statutory authority authorizing the recovery of such fees.

(Filing Date: 08-15-2012)

C. J. P. v. Lempea

Family Abuse Prevention Act: Even if a petitioner makes subjective assertions of fear, a FAPA restraining order will not be upheld when there is insufficient evidence that the alleged conduct creates an imminent danger of further abuse and a credible threat to the physical safety of the petitioner.

(Filing Date: 08-15-2012)

Pedroso v. Nooth

Post-Conviction Relief: A petition for post conviction relief that is deemed meritless under ORS 138.525 and dismissed is not appealable.

(Filing Date: 08-15-2012)

R & R Tree Service vs. SAIF Corp.

Administrative Law: Pursuant to OAR 836-042-0060, absent verifiable payroll records maintained by the employer that disclose a specific allocation for each individual employee, the entire payroll of the employee shall be assigned to the highest rated classification exposure.

(Filing Date: 08-15-2012)

SAIF Corp. v. Otwell

Administrative Law: ORS 656.268 authorizes a board to modify the effective date of TTD benefits when reconsidering the notice of closure.

(Filing Date: 08-15-2012)

State v. Choat

Appellate Procedure: For a defendant to challenge the imposition of a compensatory fine on appeal, it must have been procedurally raised at the trial level for the court to evaluate the claim.

(Filing Date: 08-15-2012)

State v. Colon

Evidence: The credibility of a witness may be impeached or bolstered in the form of reputation or opinion testimony regarding truthfulness of character if a foundation is established showing the witness has adequate contacts with the person to form a current personal opinion of the person regarding their truthfulness.

(Filing Date: 08-15-2012)

State v. Dalby

Criminal Procedure: While mentioning to a jury that a defendant exercised and invoked the right to remain silent is "presumably" harmful, it only becomes reversible error if the evidence comes "in a context whereupon inferences prejudicial to the defendant are likely to be drawn by the jury."

(Filing Date: 08-15-2012)

State v. Perez-Chi

Criminal Law: If an erroneous jury instruction is given and a conviction could have been based on that erroneous instruction, the instruction was not harmless and the case must be remanded.

(Filing Date: 08-15-2012)

Turner and Muller

Family Law: When a parenting plan constitutes a de facto change in custody, absent a motion for change of custody, the Court can exercise its discretion to review that issue de novo and establish a compliant parenting plan.

(Filing Date: 08-15-2012)

Whitsett v. Employment Dept.

Employment Law: For an individual to be considered an independent contractor, he must meet each criteria listed under ORS 670.600(2) and three of five requirements listed under ORS 670.600(3). The burden is on the employer to prove the individual meets the relevant criteria to avoid being assessed an employee tax.

(Filing Date: 08-15-2012)

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

Juvenile Law: DHS rules require the agency to meet the reasonable cause threshold which mandates that the agency demonstrate that a child is subject to a threat of severe harm, abuse, or neglect before the issuance of any allegations.

(Filing Date: 08-08-2012)

Ericsson v. State

Land Use: In order to prove that a claimant lawfully was permitted to establish dwellings or lots under section 6 of Measure 49, a claimant must prove by evidence in the DLCD administrative record that it is more likely than not that the claimant would have been actually permitted to establish the use, based on the application of prior law.

(Filing Date: 08-08-2012)

Howard v. Chimps, Inc.

Contract Law: Even if a contract is subject to unilateral changes, consideration is found upon performance of the promises exchanged between the parties.

(Filing Date: 08-08-2012)

Liberty Mutual Ins. Co. v. Schwanenberg

Insurance Law: Under ORS 656.583(1), an insurer must inform a claimant about a potential conflict of interest.

(Filing Date: 08-08-2012)

May Trucking Co. v. Employment Dept.

Employment Law: The Employment Appeals Board must address any exemption that may apply to a claimant's claim for unemployment benefits in conjunction with determining the status of the employer/employee relationship.

(Filing Date: 08-08-2012)

Rice v. Rabb

Property Law: The legislature will clearly state if a discovery rule applies to a statute of limitations.

(Filing Date: 08-08-2012)

State v. Hernandez-Lopez

Criminal Procedure: Regardless of whether or not the defendant consented to delay of trial, dismissal for lack of speedy trial is not appropriate where the delay was not unreasonable and the defendant was aware of his prior obligation to appear.

(Filing Date: 08-08-2012)

State v. Kentopp

Criminal Law: A police officer’s reasonable suspicion regarding one crime does not justify the extension of a lawful traffic stop for the purpose of conducting an investigation for an unrelated crime if the officer does not also have reasonable suspicion for that crime.

(Filing Date: 08-08-2012)

State v. Moats

Constitutional Law: A seizure does not occur under Article I section 9 of the Oregon Constitution when officers do not demonstrate authority over a defendant prior to discovering drugs in the vehicle.

(Filing Date: 08-08-2012)

State v. Pendergrapht

Attorney Fees: Under ORS 151.505 and 161.665, a court cannot impose attorney fees unless there is a factual basis for determining that a defendant is actually able to pay the fees.

(Filing Date: 08-08-2012)

State v. Ritchie

Appellate Procedure: An error is unpreserved if an objection is not raised with a sufficient explanation for the trial court to identify the error and correct it immediately.

(Filing Date: 08-08-2012)

State v. Thompson

Criminal Law: Because venue is a material allegation that the State must prove beyond a reasonable doubt, a defendant can not be convicted of failure to register as a sex offender under ORS 131.325 if there is no direct evidence to prove defendant's location after the ten-day time period expired.

(Filing Date: 08-08-2012)

Catt v. Dept. of Human Services

Civil Procedure: When there is a question of fact about the occurrence of a claimant’s knowledge of his or her injury, summary judgment is not appropriate if such knowledge, or lack thereof, will affect timely notice as required under ORS 30.275.

(Filing Date: 08-01-2012)

Dept. of Human Services v. J.G.

Evidence: Because Oregon courts recognize the parent-stepchild relationship, out-of-court statements that are adverse to the stepchild's interests in maintaining a relationship with the step-parent are nonhearsay admissions of a party-opponent and therefore admissible.

(Filing Date: 08-01-2012)

State v. Canfield

Criminal Law: A seizure occurs when “the officer has manifested a show of authority restricting an individual's freedom of movement.” When an individual’s freedom of movement is no longer interfered with, the stop has ended.

(Filing Date: 08-01-2012)

State v. Patrick

Traffic Infractions: Under ORS 811.111(1)(d) a person commits the offense of violating the speed limit if, while driving on a highway in any city, the person either: (1) exceeds the designated speed, or; (2) exceeds the specific speeds listed in ORS 811.111(1)(d)(A) to (F). Also, it was within the authority of the municipal court to adopt its own base fine schedule for violations in its jurisdiction.

(Filing Date: 08-01-2012)

State v. Rowell

Criminal Procedure: When an inventory search deviates from the established policy or procedures of a particular law enforcement agency, the inventory search will be deemed invalid, and the evidence will be suppressed.

(Filing Date: 08-01-2012)

State vs. Nix

Sentencing: For the purposes of merging convictions under ORS 161.067(2), and animal under ORS 167.325 is considered a victim.

(Filing Date: 08-01-2012)

California Casualty Indemnity Exchange v. Federated Mutual Ins. Co.

Insurance Law: Under ORS 742.534, the legislature's intent was to provide a mandatory arbitration remedy in regards to legal liability and the amount of PIP reimbursement, and therefore these two issues may not be litigated.

(Filing Date: 07-25-2012)

Clackamas Grocery Outlet Warehouse v. OLCC

Administrative Law: A retail location which sells alcoholic beverages for off-premises consumption may only store those items that it intends to sell at the same location.

(Filing Date: 07-25-2012)

Dawson v. Employment Dept.

Employment Law: Employment benefits were rightfully denied when claimant was wantonly negligent, indifferent to consequences, and should have been aware that his decision to drive under the influence of intoxicants would violate an employer's expectations of an employee.

(Filing Date: 07-25-2012)

Department of Human Services v. T.C.A.

Family Law: Overturning a termination of parental rights does not, by implication, mean that DHS must pursue re-unification of parent and child.

(Filing Date: 07-25-2012)

Dept. of Human Services v. M. R.

Civil Procedure: The denial of a motion to unseal records by the trial court is not an error when the records were never sealed to begin with.

(Filing Date: 07-25-2012)

Fay and Fay

Family Law: Without a showing of evidence, the division of property is at the discretion of the trial court. Under ORCP 68 C(4)(b) and ORCP 10, 3 days shall be added to the objection period if the notice is served by mail. Thus, an objection being served by mail is allotted 17 days rather than 14.

(Filing Date: 07-25-2012)

Murphy v. All-State

Civil Procedure: The question of whether a claim for fraud against an insurance company is time barred pursuant to ORS 12.110(1), or whether the plaintiff justifiably relied on the statements, or whether there was a special relationship, is a fact intensive inquiry that ought to be made by a jury.

(Filing Date: 07-25-2012)

State v. Doser

Criminal Procedure: When determining whether a defendant invoked his right to remain silent, courts must view the statement using a totality of the circumstances test from a reasonable officer's perspective.

(Filing Date: 07-25-2012)

State v. Kolb

Criminal Procedure: An officers suspicion that a suspect is under the influence of drugs, and that the suspect is in possession of the instrumentalities necessary to ingest the drugs does not by itself, provide the officer with reasonable suspicion to stop the suspect.

(Filing Date: 07-25-2012)

State v. McDaniel

Criminal Law: Under ORS 161,055(1) the defense of entrapment has two elements that the state must disprove beyond a reasonable doubt: that the defendant did not intend to perform the proscribed conduct, and that the defendant would not have otherwise engaged in the proscribed conduct.

(Filing Date: 07-25-2012)

State v. Oneill

Criminal Procedure: Under the community caretaking exception to the warrant requirement, police may impound vehicles that impede traffic, jeopardize public safety, and are subject to vandalism or theft.

(Filing Date: 07-25-2012)

State v. Toland

Criminal Law: A trial court may not preclude a presented defense when the defendant offers evidence to support that defense.

(Filing Date: 07-25-2012)

State v. Vanlieu

Criminal Procedure: When a trial court fails to use its statutory discretion to extend a probationary period, it cannot revoke probation based on conduct which occurred after the original probationary period was set to expire.

(Filing Date: 07-25-2012)

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

Juvenile Law: A juvenile court may have abused its discretion in terminating parental rights when the parent has missed a hearing due to an excusable mistake and has shown a good faith effort to appear.

(Filing Date: 07-18-2012)

Niday v. GMAC Mortgage, LLC

Property Law: The beneficiary of a trust deed is the party to whom the obligation is owed. Under ORS 86.735 any assignment of a beneficial interest in a trust deed must be recorded in the county mortgage records.

(Filing Date: 07-18-2012)

State v. Birchard

Criminal Procedure: A trial court commits plain error when it refuses to merge two guilty verdicts for resisting arrest from a single offense into a single conviction based on the efforts of two officers.

(Filing Date: 07-18-2012)

State v. Graham

Criminal Law: A release agreement is sufficient evidence to prove knowledge of all trial and required court appearances. Also, when a defendant files a motion for judgment of acquittal due to insufficient evidence he must state the specific theory on which the proof is insufficient.

(Filing Date: 07-18-2012)

State v. Harper

Criminal Law: To be reviewable, any challenge to a jury instruction must be preserved at trial. When there is a single victim for the two events, convictions for stealing property and then selling that property must be merged as a single conviction.

(Filing Date: 07-18-2012)

State v. Hites-Clabaugh

Evidence: First, timeliness of one’s disclosure of the need to elicit testimony from an expert witness about particular subject matter is different from timeliness of one’s intention to call an expert witness. The latter must comply with ORS 135.865. Second, ORS 418.747(1),(3), and (4) indicate that “all law enforcement personnel in a county shall conduct child abuse investigations pursuant to the protocols developed by the county’s multidisciplinary team.” Third, expert testimony about child sexual abuse that a layperson usually is unfamiliar with is admissible.

(Filing Date: 07-18-2012)

State v. McCarthy

Evidence: A witness, expert or otherwise, may not give an opinion on the credibility of another witness, or whether he believes a witness is telling the truth. The assessment of credibility is for the trier of fact only.

(Filing Date: 07-18-2012)

State v. O'Hara

Criminal Law: To satisfy the element of forcible compulsion, the trier of fact may consider circumstances known to the defendant that relate to whether the victim was in fact compelled.

(Filing Date: 07-18-2012)

Evergreen Pacific, Inc. v. Cedar Brook Way, LLC

Property Law: A contractor forfeits his right to a construction lien when a contractor secures the debt through a mortgage or trust deed.

(Filing Date: 07-11-2012)

Poppa v. Laird

Appellate Procedure: The appellant is required to provide the appellate court with a sufficient appellate record to decide the issues on appeal. The appellate court will not decide issues that were not preserved as an error in the court below.

(Filing Date: 07-11-2012)

S.M.H. v. Gerald Wayne Anderson

Family Abuse Prevention Act: Isolated contact without overt threats or an effort to be present in the same state as a petitioner is not sufficient to qualify as an immanent or credible threat to the physical safety of a person.

(Filing Date: 07-11-2012)

Sjomeling v. Lasser

Appellate Procedure: Under ORS 19.415(3), unless the Court of Appeals uses its discretion in reviewing an equitable matter de novo, the standard of review for a trial court's determination regarding the best interests of a child is abuse of discretion.

(Filing Date: 07-11-2012)

State v. Bertsch

Evidence: A person's proximity to criminal activity does not give rise to a reasonable suspicion that the person is involved in the criminal activity. Also, evidence collected during an unlawfully extended traffic stop, even after consent from the vehicle's owner, should be suppressed.

(Filing Date: 07-11-2012)

State v. Gonzales-Sanchez

Criminal Procedure: A six-year delay in prosecuting a DUII charge did not violate the defendant's right to a speedy trial because the delay was primarily caused by the defendant by failing to fulfill his obligations under the diversion agreement he entered into with the court.

(Filing Date: 07-11-2012)

State v. Goodenow

Sentencing: Pursuant to ORS 131.550 and ORS 131.604, a court's order that a defendant forfeit the entirety of her lottery ticket winnings, which were acquired in a fraudulent manner, does not constitute a violation of the Excessive Fines Clause of the 8th Amendment.

(Filing Date: 07-11-2012)

State v. Morfin-Estrada

Criminal Law: Reasonable suspicion must be based on the totality of the circumstances, and includes an officer’s subjective belief that a person is or was committing a crime, and that the belief is objectively reasonable.

(Filing Date: 07-11-2012)

State v. Morgan

Evidence: In a DUII case involving a prescribed dose of medication, defense counsel may impeach the officer under OEC 706 as to the authority of the NHTSA manual which says that FSTs are not reliable to assess the impairment of someone who has taken that medication.

(Filing Date: 07-11-2012)

State v. Worthington

Criminal Law: Under ORS 163.200(1)(a), the material part of the charge is the failure to provide necessary and adequate medical care, not whether the actions led to death or another result. For a motion in arrest of judgment, the grounds for a challenge must be based on the face of the accusatory instrument without any inclusion of extrinsic facts.

(Filing Date: 07-11-2012)

Brown v. City of Medford

Constitutional Law: Under the doctrine of unconstitutional conditions, the government need only impose an unconstitutional condition rather than actual invasion of the property, for the government to have violated a person's constitutional rights. A nexus exists when "the exaction substantially advances the same interests that the city authorities asserted would allow them to deny the permit altogether."

(Filing Date: 07-05-2012)

Dept. of Human Services v. L. G.

Juvenile Law: A juvenile court only has jurisdiction over a child as long as the bases for the jurisdiction are currently present.

(Filing Date: 07-05-2012)

Dept. of Human Services v. T.R.

Juvenile Law: Changing a permanency plan from reunification to adoption requires a showing that a parent has not made sufficient progress in spite of DHS's reasonable efforts to provide the child a safe home.

(Filing Date: 07-05-2012)

State v. Edwards

Criminal Procedure: ORS 164.415(1) and its three subsections (a)-(c) are alternative theories that define a single crime. Therefore, it is improper to charge a person with multiple counts stemming from a single incident that simultaneously satisfy multiple subsections of ORS 164.415(1).

(Filing Date: 07-05-2012)

State v. Fauce

Constitutional Law: A due process violation exists when the state fails to preserve evidence that is known to be favorable to the defendant and hard for the defendant to produce otherwise. However, if the evidence is only known to be “potentially useful” and it is speculative whether the evidence is favorable, a defendant bears the burden to prove that the state’s failure to preserve such evidence was in bad faith.

(Filing Date: 07-05-2012)

State v. Hauskins

Appellate Procedure: Under ORS 136.425, a confession without corroboration is insufficient to warrant a conviction. Secondly, the imposition of a punitive sanction for contempt is analogous enough to a criminal conviction that it carries a similar collateral consequence of stigma that will not be rendered moot because the sentenced incarceration was completed.

(Filing Date: 07-05-2012)

State v. Petersen

Criminal Procedure: UTCR 4.010 requires that all pretrial motions that are subject to an omnibus hearing be filed at least 21 days before trial.

(Filing Date: 07-05-2012)

State v. Spainhower

Criminal Procedure: ORS 33.096 requires a court to impose sanctions for contempt at or before the defendant’s trial in which the contempt was held unless there is an overriding interest for delay.

(Filing Date: 07-05-2012)

State v. Wan

Criminal Law: Officers that viewed a woman crying in the fetal position, inside of an apartment, after an argument, had sufficient evidence for the application of the emergency aid exception to the warrant requirement. A jury instruction, regarding the right to self-defense during an arrest involving unlawful force may be utilized, when the defendant believed that the force being used exceeded the force reasonably necessary to make the arrest.

(Filing Date: 07-05-2012)

Agrons v. Strong

Civil Procedure: The trial court may permit a Plaintiff to amend his complaint under ORCP 23 B if the trial court in its determination decides that the presentation of the merits of the action will not be subserved by the amendment, nor will the admission of such evidence prejudice the adverse party in maintaining an action or defense on the merits.

(Filing Date: 06-27-2012)

Amalgamated Transit Union, Division 757 v. Tri-Met

Administrative Law: A public employer commits a per se unfair labor practice if it institutes a unilateral change to the status quo involving a CSI policy, but the challenger bears the burden to prove the status quo. Substantial evidence exists when a reasonable person could come to that conclusion based on the whole record. A board is authorized to take such affirmative action as necessary to remedy unfair labor practice violations. A board's decision to rescind a disciplinary action that was the result of binding arbitration based on unfair labor practice is not tantamount to rescinding the arbitration award.

(Filing Date: 06-27-2012)

City of Eugene v. McDermed

Workers Compensation: Compensation for an injury is correctly awarded to a police officer injured while getting coffee if the officer was on duty at the time of the injury, and thus was within the scope of her employment.

(Filing Date: 06-27-2012)

Dept. of Human Services v. S. A.

Juvenile Law: Under ORS 419B.476(5), a juvenile court is required to make a permanency plan determination after a permanency hearing, even where the hearing is combined with a guardianship hearing.

(Filing Date: 06-27-2012)

Dept. of Human Services v. S.N.

Family Law: It is not error for a juvenile court to change a permanency plan, despite progress by a parent, when the environment that the child would be placed in would not be conducive to the child's needs.

(Filing Date: 06-27-2012)

Legacy Health Systems v. Noble

Workers Compensation: An injury arises out of employment when the risk is connected with the nature of the work or the work environment.

(Filing Date: 06-27-2012)

State v. Cruz-Renteria

Criminal Procedure: Marion County Sheriff’s Office Policy 3315 requires that “when taking custody of a prisoner’s property for temporary storage,” deputies are required to “open closed containers designed to typically carry identification, cash, valuables, medications or contraband,” and not open those that merely could contain such items.

(Filing Date: 06-27-2012)

State v. Danford

Criminal Procedure: Under ORS 135.747, a delay in prosecution, not brought on or consented to by the defendant, shall be dismissed if it is an unreasonable length of time. A 41-month delay substantially exceeds a reasonable period of time.

(Filing Date: 06-27-2012)

State v. Dennis

Criminal Law: An officer may not extend the duration of a stop by inquiring into unrelated criminal matters as an alternative to going forward with the processing of the current infraction. Any evidence that is obtained by inquiring into unrelated criminal matters is admissible only if it is obtained during an "unavoidable lull" in the initial stop.

(Filing Date: 06-27-2012)

State v. Hollywood

Evidence: Testimony of one witness regarding the credibility of another witness is impermissible. Additionally, the Court suggests that the trial judge should summarily cut off questions that elicit testimony on the credibility of a witness so that a jury is not contaminated by it.

(Filing Date: 06-27-2012)

State v. Ibarra-Ruiz

Evidence: When a party makes an objection, his explantion of his position must be specific enough to give enough clarity to the court to identify its alleged error and to allow it to consider and correct the error immediatly, if needed.

(Filing Date: 06-27-2012)

State v. Mast

Constitutional Law: Under Article I, section 9, a private office constitutes a protected privacy interest which requires a warrant in order to search. The administrative search exception does not give an officer the authority to "forcibly enter" said private office or premises.

(Filing Date: 06-27-2012)

State v. Montoya-Franco

Evidence: Statements translated by interpreters are admissible under the residual hearsay rule if the interpreters are shown to be qualified to translate.

(Filing Date: 06-27-2012)

State v. Sanchez-Jacobo

Criminal Law: It was not improper "vouching" for a witness's credibility when she testified that part of her plea bargain included coming to court and telling the truth, and a prosecutor's misstatement of law during closing argument was not plain error, nor was it preserved on appeal.

(Filing Date: 06-27-2012)

State v. Vanornum

Appellate Procedure: An objection to instructions given by the trial judge must adequately identify the asserted error to the trial court so “the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted.” If the objection is too “generalized,” it will not be preserved for review on appeal.

(Filing Date: 06-27-2012)

Worthington v. Estate of Milton E. Davis

Civil Procedure: Under ORCP 23C, the decedent and the representatives of decedent's estate are entirely different parties. Choosing the incorrect party constitutes misidentification and an amended complaint will only relate back if it satisfies the requirements of ORCP 23C.

(Filing Date: 06-27-2012)

Lamka v. KeyBank

Civil Procedure: Under ORCP 23A and ORCP 21A, a plaintiff may amend a pleading once as matter of right before a responsive pleading is served, even if the trial court has dismissed the complaint.

(Filing Date: 06-20-2012)

Mark Latham Excavation, Inc. v. Deschutes County

Land Use: When a county makes a decision concerning a Goal 5 land plan/use, the reasons it relies upon in garnering that decision must have existed at the time the original regulation was adopted. If the local government never contemplated a particular act, then the reasons do not exist

(Filing Date: 06-20-2012)

State v. Arreola

Evidence: Where curative instruction is insufficient to cure prejudicial effect on the jury, denial of mistrial is improper.

(Filing Date: 06-20-2012)

State v. Holdorf

Criminal Law: In cases involving “reasonable suspicion” there is no bright line rule, and courts must employ an individualized, objective test based on the facts.

(Filing Date: 06-20-2012)

State v. Hoover

Criminal Law: In the absence of a statutory definition for “penetration” in the crime of sexual penetration, the act merely requires proof that the victim's vagina, rather than external genitalia, was penetrated, however slightly.

(Filing Date: 06-20-2012)

State v. Powell

Criminal Procedure: Multiple second-degree robbery verdicts merge into a single count per victim; however, second-degree robbery verdicts do not merge with first-degree robbery verdicts.

(Filing Date: 06-20-2012)

State v. Reynolds

Criminal Law: In an assault in which the aiding person is present, an assisting assailant may not be charged with assault in the third-degree as an accomplice.

(Filing Date: 06-20-2012)

Eagles Five, LLC v. Lawton

Property Law: Injunctive relief is only an appropriate remedy when a party will experience immediate or irreparable harm without it, and it is not appropriate for future contingencies.

(Filing Date: 06-13-2012)

Homebuilders Assoc. of Metro. Portland v. Metro

Tax Law: Expanding the scope of Metro's construction tax did not make it a new tax subject to the restrictions of SB 1036 or MC 2.19.200 because it was an extension or continuation of the present tax and did not materially alter it.

(Filing Date: 06-13-2012)

Kercher v. Employment Dept.

Administrative Law: Substantial evidence exists when a reasonable person could make that finding based on the entire record and substantial reason ensures that the order explains the reasoning between the facts and the conclusion.

(Filing Date: 06-13-2012)

Knotts v. Psychiatric Security Review Board

Civil Commitment: Decisions of the Psychiatric Security Review Board must be supported by "substantial reasoning" in order to be affirmed by the Court of Appeals. Thus, if the board's reasoning cannot be ascertained or is faulty, the order must be reversed and remanded.

(Filing Date: 06-13-2012)

Schleiss v. SAIF

Workers Compensation: Under OAR 436-035-0013, workers may receive permanent partial disability benefits only when the disability was caused by a compensable condition. Also, apportionment is not precluded unless the compensable injury worsened or rendered symptomatic a noncompensable condition.

(Filing Date: 06-13-2012)

State v. Cordova

Criminal Procedure: General Order 66.1.2 of the Marion County Sheriff's Office, allowing for the search of all closed containers that could contain valuables during an inventory search following arrest, is overly broad and therefore a violation of Article 1, section 9 of the Oregon State Constitution.

(Filing Date: 06-13-2012)

State v. Johnson

Criminal Law: Under ORS 166.382(1)(a)(A), the meaning of the term "bomb" requires that a device be capable of detonating under certain conditions. The statute does not suggest that a device is not a "bomb" just because the device is temporarily disabled.

(Filing Date: 06-13-2012)

State v. Moresco

Criminal Law: A violation of ORS 162.385, the crime of giving false information to a police officer, requires a showing that the person knowingly gives a fictitious name, address or date of birth to a police officer, and the officer asked for the information for the purpose of arresting the person on a warrant.

(Filing Date: 06-13-2012)

State v. Steffens

Criminal Procedure: Outside the a natural lull occuring during the preparation of a citation or investigation, the police may only inquire about a matter unrelated to a traffic stop if there is a reasonable suspicion of crime-related activity or danger to the officer or the public.

(Filing Date: 06-07-2012)

Holbrook v. Employment Dept.

Employment Law: Under ORS 183.470(2), an employment appeals board must support their decisions with findings and explain how the board reached a specific conclusion.

(Filing Date: 06-06-2012)

Nickerson v. Employment Dept.

Employment Law: Unemployment benefits eligibility under ORS 657.221 are determined at the time of the claim based on whether a "reasonable assurance" of employment exists. Gaining reasonable assurance of employment after being eligible cannot retroactively defeat unemployment benefits eligibility.

(Filing Date: 06-06-2012)

SAIF v. DCBS

Workers Compensation: The status of a "worker" requires the application of both the "right to control" and the "nature of the work" tests.

(Filing Date: 06-06-2012)

Smith v. Board of Parole

Administrative Law: A notice-of-rights form constitutes a rule under ORS 183.310(9) requiring compliance with the Administrative Procedures Act when it details practices and procedures that are generally applicable to all hearings.

(Filing Date: 06-06-2012)

State v. Martinez

Sentencing: In absence of any evidence on the record to support a particular amount awarded for restitution, the Court can exercise its discretion to correct the plain error.

(Filing Date: 06-06-2012)

State v. Reeves

Criminal Law: Under ORS 161.067(2), because the children depicted in pornographic images are "multiple victims" for the purpose of Encouraging Child Sexual Abuse in the First Degree, merger of more than one guilty verdict into one conviction is precluded, regardless of whether it is the same criminal episode.

(Filing Date: 06-06-2012)

State v. Witherspoon

Criminal Procedure: Two criminal counts which arose from continuous, uninterrupted conduct that were joined in time, place, and circumstances are not separate criminal episodes for the purpose of calculating defendant's criminal history score.

(Filing Date: 06-06-2012)

U.S. Market #109 v. OLCC

Administrative Law: When the OLCC places a restriction on the liquor license requiring the Licensee to install age verification equipment and train the employees to use it, the Licensee must require its employees to use the equipment in appropriate circumstances.

(Filing Date: 06-06-2012)

American Energy, Inc. v. City of Sisters

Civil Law: Under section 25 of the Oregon Jobs and Transportation Act, an ordinance is deemed enacted when it is adopted by it's governing body, rather than after it has been referred for a citizen's vote.

(Filing Date: 05-31-2012)

Blunier v. Staggs

Attorney Fees: Attorney fees that are reasonably incurred while enforcing the terms of a trust deed are considered an expense of the trust.

(Filing Date: 05-31-2012)

Kollman v. Cell Tech International, Inc.

Corporations: Claims for monetary damages are tried at law before a jury. A stockholder, asserting a breach of fiduciary duty, who suffered harm individually and will receive the benefit of the recovery, is entitled to a direct claim.

(Filing Date: 05-31-2012)

Maguire v. Clackamas County

Property Law: Procedural error by LUBA is not cause for reversal or remand unless the court finds that substantial rights of the petitioner were prejudiced thereby and LUBA review is preempted by ORS 195.318(1) which states a county's determination under Measure 49 is not a land use decision.

(Filing Date: 05-31-2012)

Muzzy v. Uttamchandani

Property Law: An unrecorded deed is void as against a subsequent bona fide purchaser for value unless the purchaser can prove that he bought in good faith, for valuable consideration, and filed first for record.

(Filing Date: 05-31-2012)

Noble v. Dept. of Fish and Wildlife

Administrative Law: An interpretation by an agency of its own rule will be upheld as long as it is plausible and consistent with the rule itself.

(Filing Date: 05-31-2012)

State v. McMullen

Criminal Procedure: The fleeting nature of a suspect’s blood alcohol level is an allowable exigent circumstance that will ordinarily permit a warrantless blood draw when an officer has probable cause to believe the defendant is under the influence of intoxicants.

(Filing Date: 05-31-2012)

State v. Nguyen

Civil Stalking Protective Order: A defendant who seeks to challenge a conviction under ORS 163.750 for violating a stalking protective order on free speech grounds must first successfully attack the underlying protective order.

(Filing Date: 05-31-2012)

State v. Rambo

Evidence: Nonscientific expert opinion evidence based on independently admissible scientific evidence is admissible, as long as the expert is established as qualified through experience and training and does not use scientific language or suggest that his conclusion was based on a scientific method or data collection.

(Filing Date: 05-31-2012)

State v. West

Criminal Procedure: A trial court properly denies a defendant’s request to exclude breath test results when there is an absence of satisfactory foundational requirements for scientific evidence; breath test results are admissible when the procedures of ORS 813.160(1) and associated rules have been followed.

(Filing Date: 05-31-2012)

State v. Wirfs

Criminal Law: An error is not harmless when a criminal defendant is precluded from rebutting the state's argument due to sustained objections to the defense's direct questions. Additionally, the scope of redirect examination cannot exceed that which was covered during cross examination.

(Filing Date: 05-31-2012)

Trees v. Ordonez

Tort Law: In medical malpractice cases, expert testimony must not only establish causation, but must also provide evidence of the applicable standard of care customarily used by a reasonably careful practitioner.

(Filing Date: 05-31-2012)

Berg and Berg

Family Law: ORS 107.105(1) requires that the division of marital property be "just and proper in all circumstances," Spousal support awards should be based on the trial court's discretion and supported by evidence in the record.

(Filing Date: 05-16-2012)

Blachana, LLC v. Bureau of Labor and Industries

Administrative Law: The administrative interpretation of "successor to the business of any employer" under the definition "employer" within ORS 652.310(1) should be interpreted as a party that has assumed or conferred upon it the legal rights and obligations of the predecessor.

(Filing Date: 05-16-2012)

Brown v. City of Eugene

Municipal Law: Under section 44(3) of the Eugene City Charter, "water service" means the direct provision of water to end users, and is not so broad as to include the sale of water to other entities that will then distribute the water.

(Filing Date: 05-16-2012)

Case v. Burton

Property Law: Under common law and ORS 105.620, a claim for adverse possession fails if the claimant does not adequately identify the area that was allegedly adversely possessed.

(Filing Date: 05-16-2012)

Crothers v. Employment Dept.

Employment Law: Unavailability to work during avocation hours will not disqualify a recipient of unemployment benefits so long as the unavailability does not interfere with regular hours of primary employment.

(Filing Date: 05-16-2012)

Department of Human Services v. C.M.M.

Family Law: When determining the fitness of a parent, the test is at the time of termination and focuses on the detrimental effects of the parent's conduct on the child.

(Filing Date: 05-16-2012)

Gay and Gay

Family Law: It is legally permissible and within the trial court's discretion to decide to not distribute shares to one spouse in a closely held corporation in exchange for an equalizing judgment.

(Filing Date: 05-16-2012)

J.L.B. v. K.P.B.

Civil Stalking Protective Order: Under ORS 30.866, taking numerous photographs of a person's home does not meet the standard of causing that person reasonable apprehension regarding his personal safety.

(Filing Date: 05-16-2012)

Krohn v. Hood River School District

Administrative Law: A plaintiff does not need to exhaust administrative remedies if the claims for which she is seeking relief are not governed by a collective bargaining agreement, but rather are statutory in nature.

(Filing Date: 05-16-2012)

Mannex Corp. v. Bruns

Employment Law: To claim the tort of intentional interference of economic relations the plaintiff must show that the defendant is a third party to the contract. Communications made by an employee to protect the interests of their employer are qualifiedly privileged.

(Filing Date: 05-16-2012)

State v. Delaportilla

Criminal Law: A court cannot convict 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: 05-16-2012)

State v. Gaskill

Sentencing: Special conditions of probation must be reasonably related to the crime of conviction or the needs of the probationer for the protection of the public or reformation of the probationer, or both. Moreover, the conditions cannot be more restrictive than necessary to achieve the goals of probation.

(Filing Date: 05-16-2012)

State v. Hutton

Evidence: Evidence of prior misconduct is admissible to show intent even where it is not a contested issue so long as mens rea is an element to a crime charged.

(Filing Date: 05-16-2012)

State v. Taylor

Criminal Procedure: For a police inventory procedure to be valid, it must limit the discretion of the officers in searching and opening containers seized from arrested individuals. If the procedure gives too much discretion, it is constitutionally invalid.

(Filing Date: 05-16-2012)

DK Entertainment v. Oregon Liquor Control Commission

Administrative Law: Under OAR 845-006-0347(3)(a), the Oregon Liquor Control Commission's interpretation of the word "permit" is consistent with it's application in previous cases where the unlawful actions of an employee are imputed to a licensee.

(Filing Date: 05-09-2012)

Goodsell v. Eagle-Air Estates Homeowners Assn.

Civil Law: Where homeowners association bylaws and statutory removal provisions are nonexclusive and Oregon law supplements them without contradiction, an action to remove defendant directors of the association may be rejected.

(Filing Date: 05-09-2012)

Hoekstre v. DLCD

Land Use: Remedies afforded by section 6 of Ballot Measure 49 (2007) allow a claimant to receive relief under sections 6(2) or 6(3), but these subsections cannot be combined to afford a cumulative remedy.

(Filing Date: 05-09-2012)

Kirsch v. Dep’t. of Consumer and Business Services

Administrative Law: The Court will overturn an agency order only if the credible evidence apparently weighs overwhelmingly in favor of one finding and the board 'found' the other without providing substantial reason.”

(Filing Date: 05-09-2012)

Lopez v. Mills

Post-Conviction Relief: The post-conviction court's award of specific performance is an adequate remedy when the prosecutor breaches his agreement to provide a recommendation if it provides the defendant the benefit of the agreement that led to the plea.

(Filing Date: 05-09-2012)

State v. Kinney

Evidence: Despite a defendant’s proffered stipulation, evidence may be admissible if it is relevant to prove a fact that is at issue notwithstanding the stipulation. Furthermore, evidence against a defendant is not unfairly prejudicial solely because it is graphic in nature.

(Filing Date: 05-09-2012)

State v. Massey

Evidence: Use of the Miles jury instruction is improper when there is insufficient evidence at trial to show that a defendant's physical condition made him more susceptible to the influence of intoxicants than he normally would be.

(Filing Date: 05-09-2012)

State v. Moore

Appellate Procedure: The Court of Appeals will not hear arguments that are not preserved at the trial court.

(Filing Date: 05-09-2012)

US Market #180, LLC v. Oregon Liquor Control Commission

Administrative Law: Under OAR 845-006-0335(1), an employee selling alcoholic beverages is only required to visually verify a purchaser's age when the employee is not using age verification equipment under OAR 845-005-0335(5).

(Filing Date: 05-09-2012)

C.L.C. v. Bowman

Civil Stalking Protective Order: Terminating a Stalking Protective Order (SPO) involves considering all of the evidence, including internet evidence, to determine if the context that gave rise to the SPO still causes a subjective apprehension of a threat to their personal safety. If the context still exists and is otherwise objectively reasonable, the SPO should not be terminated.

(Filing Date: 05-02-2012)

Department of Consumer and Business Services v. Zurich American

Administrative Law: The Department of Consumer and Business Services does not possess authority to compel payment from a private insurance company based on the failure of the insurance company's client to file notice of a working-leasing arrangement with the DCBS.

(Filing Date: 05-02-2012)

Nelson v. American Home Mortgage Servicing, Inc.

Civil Procedure: Under ORCP 71B, a court must have personal jurisdiction over a party in order to render a judgment.

(Filing Date: 05-02-2012)

Oregon Shores v. Board of County Commissioners

Land Use: In determining whether a landowner has a common law vested right to continue in developing his land, the court will use the “expenditure ratio” as a necessary starting point in evaluating whether the land owner has incurred substantial enough costs toward completion of the project.

(Filing Date: 05-02-2012)

S.A.B. v. Roach

Civil Stalking Protective Order: For a stalking protective order, ORS 30.866 requires two or more contacts that will cause objectively reasonable fear. If verbal, the contact must rise to the level of a threat, and if physical, the contact must both subjectively and objectively reasonably cause alarm or coercion.

(Filing Date: 05-02-2012)

State v. Clatsop County

Property Law: When calculating the expenditure ratio to determine whether there is a common law vested right to complete a residential subdivision in compliance with county and state waivers issued pursuant to Ballot Measure 37, a court must include the cost of building homes on the property as of the effective date of Measure 49.

(Filing Date: 05-02-2012)

State v. J.L.C.

Juvenile Law: A juvenile court has jurisdiction over a youth when that youth commits harassing acts or offensively contacts another person. Evidence in the record may support this proposition.

(Filing Date: 05-02-2012)

State v. Linn County

Land Use: When determining vested rights expenditure ratios, dedications may be included in the numerator. For the denominator, a court must use a total project cost, not a hypothetical cost.

(Filing Date: 05-02-2012)

State v. Torres

Criminal Procedure: Under ORS 161.067(3), the public at large is considered a "victim" of a violation of ORS 166.270 and thus multiple offenses against the public can be merged into one conviction.

(Filing Date: 05-02-2012)

State v. Young

Sentencing: When a court imposes a post-prison supervision term it cannot be for an indefinite period and dependent upon the amount of prison time the defendant actually serves. If the sentence is concurrent with a prison term, the sum of the two terms cannot exceed the statutory maximum indeterminate sentence.

(Filing Date: 05-02-2012)

Awbrey Towers v. Western Radio Services

Attorney Fees: Under ORS 20.096(1), attorney fees are available to the prevailing party when the action is brought to enforce any provisions of the underlying agreement.

(Filing Date: 04-25-2012)

Hunt v. City of Eugene

Civil Procedure: ORCP 54(B) provides that nothing shall prevent the court from dismissing an action for want of prosecution notwithstanding the requirement that the clerk shall notify the parties that the case has been inactive for more than a year. Under ORS 20.105, the city is not entitled to attorney fees if the arguments brought against it were plausible.

(Filing Date: 04-25-2012)

Page v. Parsons

Civil Procedure: A trial court is not required to provide multiple hearings on a special motion to strike under ORS 31.150, as this would be contrary to legislative intent to curtail the litigation process. A trial court may also grant a special motion to strike after a non-specific discovery request from the plaintiff.

(Filing Date: 04-25-2012)

State v. Kurokawa-Lasciak

Criminal Procedure: Authority to consent to a search is proper only if the consenter has proper authority to control and access the property to be searched.

(Filing Date: 04-25-2012)

State v. Lewis

Sentencing: A defendant's due process and speedy trial rights are not violated when the defendant is convicted in Oregon but not sentenced until he returns from serving almost a 20-year sentence in Washington for separate crimes.

(Filing Date: 04-25-2012)

State v. Onishchenko

Evidence: In order to establish the amount of a compensatory fine, the market value of a chattel may be ascertained through the testimony of the owner, unless it is shown that the owner does not have knowledge of the market value of the item.

(Filing Date: 04-25-2012)

Wagner v. Jeld Wen

Workers Compensation: When establishing a compensable injury under ORS 656.005(7)(a), the claimant must show that his actual injury originated from a work related incident and this incident caused him to seek medical attention.

(Filing Date: 04-25-2012)

Johnson Mobile Estates v. Oliver

Landlord Tenant: ORS 105.149(2) allows the trial court to consider any issue outside the defendant's hearing request where the Residential Landlord Tenant Act applies.

(Filing Date: 04-18-2012)

Peterson v. McCavic

Contract Law: To prevail on a fraud claim a plaintiff must show a representation; its falsity; its materiality; the speaker's knowledge of its falsity or ignorance of its truth; his intent that it will be acted on by the listener; the listener's ignorance of its falsity; his reliance on its truth; his right to rely thereon; and his consequent and proximate injury. Plaintiff may prevail if he can show a reasonable inference of reliance based upon the evidence.

(Filing Date: 04-18-2012)

Saif v. Miguez

Workers Compensation: Under OAR 436-035-0007(12), an appellate review unit must explain what observations led to its findings of invalidity, how these observations contradict the validity of the findings, and why the observations are medically significant before it may invalidate a medical examiner's findings.

(Filing Date: 04-18-2012)

State v. Bennett

Criminal Procedure: In imposing an upward departure sentence, a court may consider the defendant’s conduct after the crime for which the defendant is being sentenced.

(Filing Date: 04-18-2012)

State v. Dries

Civil Procedure: Under ORCP 59 H, a party must “state with particularity” the trial court’s alleged error in order to preserve an appellate challenge to the error.

(Filing Date: 04-18-2012)

State v. Kephart

Appellate Procedure: Where the trial court does not address an issue or state what version of a statute it applied, and either issue is raised on appeal, the case will be vacated and remanded to the trial court.

(Filing Date: 04-18-2012)

State v. Lamb

Criminal Procedure: During the course of a lawful stop, an officer may inquire as to whether the defendant has weapons on his person without it being an unlawful seizure.

(Filing Date: 04-18-2012)

State v. Lowell

Appellate Procedure: An investigating detective’s testimony that he believed defendant was lying was an improper comment on defendant's credibility. The trial court's failure to exclude this testimony was plain error and therefore reviewable.

(Filing Date: 04-18-2012)

Rudell v. City of Bandon

Land Use: A city may rely on Webster's Dictionary to define the scope of "foredune", and such interpretation is not inconsistent with the Bandon Municipal Code. Also, under ORS 197.307(6) (2009) and ORS 227.173(1), the definition, as interpreted by the city, must be sufficiently clear and objective.

(Filing Date: 04-11-2012)

State v. Babson

Constitutional Law: Article IV, section 9 of the Oregon Constitution does not protect co-chairs sitting in a legislative committee from being brought before a court for questioning, so long as it limited to their capacity in enforcement (as opposed to enactment) of legislation.

(Filing Date: 04-11-2012)

State v. Macon

Criminal Law: Under ORS 164.215(1), a storage room, separated from a store by a closed door, is a separate unit from the store that patrons do not have license to enter.

(Filing Date: 04-11-2012)

State v. N. R. L.

Juvenile Law: Despite recent amendments to ORS 419C.450, restitution continues to function as an element of the penal system. Therefore, it does not require a jury trial that would be afforded by Article I, section 17 of the Oregon Constitution.

(Filing Date: 04-11-2012)

State v. Urbina

Criminal Law: Downloading child pornography from an online peer-to-peer network constitutes "knowing duplication" of those materials and, in cases of encouraging child sex abuse, whether the "victim" is the State or the child in the image/video is a matter "reasonably in dispute."

(Filing Date: 04-11-2012)

Bock and Bock

Family Law: A 4% increase in income does not constitute an unanticipated or substantial change in economic circumstances that would justify a modification of a child support order.

(Filing Date: 04-04-2012)

Gest v. Oregon AFL-CIO

Labor Law: An informal employee grievance meeting is a "concerted activity" that is regulated by the NLRA. Under Garmon , the state must allow the National Labor Relations Board to determine labor disputes that the NLRA was designed to protect or prohibit.

(Filing Date: 04-04-2012)

Protect Grand Island Farms v. Yamhill County

Land Use: Under Statewide Planning Goal 5, OAR 660-023-0180(3)(d)(B)(ii), the phrase “average thickness of the aggregate layer within the mining area” is intended to refer to the average depth of all the mineable aggregate within the resource site, regardless of whether that aggregate is physically discontinuous.

(Filing Date: 04-04-2012)

State v. Bobbitt

Evidence: Under former ORS 192.555(2)(a), an individual's financial records may not be disclosed unless the financial institution has an independent suspicion that the individual has violated the law; a relayed suspicion by law enforcement is not sufficient.

(Filing Date: 04-04-2012)

State v. Debuiser

Appellate Procedure: A court does not commit plain error when a plausible inference can be drawn that an objection was not made for tactical reasons.

(Filing Date: 04-04-2012)

State v. Elliott

Criminal Law: When a defendant is charged with identity theft, evidence that a defendant stole credit cards is legally sufficient to permit a jury to infer the defendant's intent to deceive or defraud beyond a reasonable doubt, even when the defendant took no action in furtherance of that identity theft.

(Filing Date: 04-04-2012)

State v. Hicks

Criminal Procedure: A court need not apply the “shift to I” rule to consecutive sentences that are “statutorily mandated” because they are outside the scope of OAR 213-012-0020.

(Filing Date: 04-04-2012)

Wallace v. State

Administrative Law: While otherwise justiciable, a case before an Appellate Court is moot if the relief to be granted by a finding of error has already been obtained.

(Filing Date: 04-04-2012)

Anderson v. Dry Cleaning To-Your-Door

Civil Procedure: ORCP 68 C(2) requires a party to seek award for attorney fees by pleading or motion and provide a basis for an entitlement to attorney fees.

(Filing Date: 03-28-2012)

Dept. of Human Services v. B.W.

Family Law: The rational relationship requirement is only a minimal threshold for the court to consider alongside other items when determining the validity of an order.

(Filing Date: 03-28-2012)

Dept. of Human Services v. S.P.

Family Law: Under ORS 419B.100(1)(c), state jurisdiction over a newborn is not supported where the record lacks clear statements of reoccurring problems and where the record does not demonstrate the extent of a mother's developmental disability or the existence of a father's alleged mental health and anger issues.

(Filing Date: 03-28-2012)

Johnson v. Deschutes County

Land Use: The proper analysis for determining a common law vested right to develop property under section 5(3) of Measure 49 was handed down in Friends of Yamhill County v. Board of Commissioners . However, in reviewing a hearings officer determination, the writ of review court cannot render its own factual findings.

(Filing Date: 03-28-2012)

Parsley v. Oregon

Civil Law: The validity of a circuit court judgment may not be attacked in a subsequent contempt proceeding. Additionally, a plaintiff is not required to appear at a contempt hearing.

(Filing Date: 03-28-2012)

Sconce and Sweet

Family Law: For a custody-modification, the party seeking the change in custody must prove that a substantial change in circumstances occurred since the last order relating to custody.

(Filing Date: 03-28-2012)

Spillane and Spillane

Family Law: The party requesting modification or termination of spousal support has the burden of demonstrating a current, substantial, and unanticipated change of circumstances from the time of the dissolution that precludes the earning capacity of the paying spouse.

(Filing Date: 03-28-2012)

State v. Alonzo

Criminal Procedure: Under ORCP 59 H(1), there are two situations that bar appellate review if the party does not preserve its objection: (1) An erroneous instruction from the trial court; and (2) Refusing to deliver a parties’ requested instruction.

(Filing Date: 03-28-2012)

State v. Everett

Criminal Law: The crime of solicitation, ORS 161.435(1), occurs when a person solicits an intermediary to procure a third party to commit the intended crime so long as the intermediary is aware of that intended crime.

(Filing Date: 03-28-2012)

State v. Groom

Criminal Procedure: The automobile exception rule for searches applies only when the vehicle is moving when police first encounter it in connection with a crime.

(Filing Date: 03-28-2012)

State v. Jordan

Criminal Procedure: Under ORS 137.106(1)(a), the appropriate cut-off date for restitution is the date imposed by the sentencing court, and the trial court may award restitution for income lost up until that date.

(Filing Date: 03-28-2012)

State v. Nolasco-Lara

Criminal Law: The Court may choose not to exercise its discretion regarding sentences that meet the test for plain error if the Defendant encouraged the trial judge to impose a sentence and strategically chose not to object to the sentence.

(Filing Date: 03-28-2012)

State v. Truong

Criminal Procedure: When a defendant is sentenced to serve consecutive prison sentences, the total prison term cannot exceed 400 percent of the maximum for the primary offense in the case.

(Filing Date: 03-28-2012)

Unifund CCR Partners v. Deboer

Civil Procedure: When another state’s otherwise applicable statute of limitation period is substantially different than Oregon’s and the application of that statute of limitation would impose an unfair burden on defending against the claim, a court may apply the appropriate Oregon statute of limitation.

(Filing Date: 03-28-2012)

State v. Christian

Constitutional Law: Portland City Code 14A.060.010(A), which prohibits carrying a firearm in a public place "recklessly having failed to remove all the ammunition," is facially constitutional under the Oregon Constitution Article I § 27 and the Second Amendment to the United States Constitution because it does not punish protected activity in a significant number of circumstances.

(Filing Date: 03-21-2012)

CACV of Colorado v. Stevens

Civil Procedure: When another state’s otherwise applicable statute of limitation period is substantially different than Oregon’s and would impose an unfair burden in defending against the claim, a court may apply the appropriate Oregon statute of limitation.

(Filing Date: 03-14-2012)

Capitol Specialty Ins. Co. v. Chan & Lui, Inc.

Insurance Law: Amendments to policy coverage amounts do not apply retroactively where the "effective date of change" is clearly and unambiguously stated within the policy.

(Filing Date: 03-14-2012)

Department of Human Services v. B.B.

Juvenile Law: A history of sexual abuse is insufficient grounds to support a finding, sixteen years after the last confirmed instance of abuse, that a father presents a current risk of danger to his minor children.

(Filing Date: 03-14-2012)

Dept. of Human Services v. D.M.

Family Law: Exposure to a parent's unconventional but not unlawful lifestyle does not justify state intervention into a parent's fundamental right to the care, control, and custody of his or her children.

(Filing Date: 03-14-2012)

K. R. v. Erazo

Civil Stalking Protective Order: For a stalking protective order, ORS 30.866 requires two or more contacts that will cause objectively reasonable fear and, where the contact is speech, it must be a threat that invokes imminent fear.

(Filing Date: 03-14-2012)

Kazlauskas v. Emmert

Contract Law: In contracts cases, specific performance as a remedy should only be available when other remedies are insufficient to compensate the non-breaching party.

(Filing Date: 03-14-2012)

Nice v. Townley

Family Law: When applying ORS 107.137(1) in a custody determination, each of the factors listed must be considered and any one factor may not be relied on at the exclusion of another. Additionally, proper consideration must be given to the preference for the primary caregiver under ORS 107.137(1)(e).

(Filing Date: 03-14-2012)

State v. Crook County

Land Use: When determining whether someone has a common law vested right to complete a building project in compliance with Ballot Measure 37, the cost of completion must be established in the record and cannot be assumed.

(Filing Date: 03-14-2012)

State v. Durst

Criminal Procedure: Unlawful use of a weapon and menacing charges require the State to prove Defendant's intent to engage in particular conduct and the intent to cause a particular result. Therefore, jury instructions that refer to both the conduct and the result are not errors.

(Filing Date: 03-14-2012)

State v. Gilbert

Sentencing: When a sentencing court does not make an oral or written ruling that a sentence will be served consecutively with another sentence, ORS 137.123(1) requires that the sentences run concurrently, and the reference in ORS 138.083(1)(a) to amending an “erroneous term” cannot be employed by the sentencing court to amend the sentence due to an unexpressed intention at the time of the original judgment for the sentences to run consecutively.

(Filing Date: 03-14-2012)

State v. Hanna

Criminal Procedure: For the purposes of searching impounded vehicles, the bed of a truck under a locked tonneau cover does not constitute a trunk or an external container.

(Filing Date: 03-14-2012)

State v. Mills

Evidence: In venue cases, the state may establish venue through circumstantial evidence but the evidence must be substantial enough to prevent the jury from speculating or guesswork.

(Filing Date: 03-14-2012)

State v. Nims

Criminal Procedure: Under the unavoidable lull rule, it is not unlawful for an officer to inquire about matters unrelated to the initial violation as long as the inquiry does not unlawfully extend that traffic stop.

(Filing Date: 03-14-2012)

State v. Stark

Criminal Law: Under ORS 166.270(3)(a), the phrase "at the time of judgment" refers to the time when the original felony judgment was entered. A later reduction of the charge to a misdemeanor is irrelevant.

(Filing Date: 03-14-2012)

State v. Trident Seafoods Corp.

Contract Law: Per an agreement, a fish processor must pay fair market value for fish caught over the established limits, whether or not the fish was ultimately processed.

(Filing Date: 03-14-2012)

Wolfe and Wolfe

Family Law: Limited integration of separate property assets into the common financial affairs of a long term marriage significantly affect the distribution of marital property.

(Filing Date: 03-14-2012)

City of Eugene v. McCann

Workers Compensation: Under ORS 656.802(4), cardiovascular diseases are defined as a physical impairment of the heart or blood vessels that is gradual in nature; this definition precludes symptoms of an underlying disease that do not cause physical impairment of the heart.

(Filing Date: 03-07-2012)

Kirkpatrick and Kirkpatrick

Family Law: Failure to promote a healthy relationship between parent and child can constitute a substantial change in circumstances.

(Filing Date: 03-07-2012)

Reach Community Development v. Stanley

Landlord Tenant: A letter from a landlord to tenant indicating that rent will not be accepted pending resolution of a BOLI investigation does not constitute a waiver of the landlord's right to insist on the payment of all accrued rent within 72-hours of issuing and serving a notice of nonpayment pursuant to ORS 90.394.

(Filing Date: 03-07-2012)

State v. Delatorre-Vargas

Criminal Procedure: The identifications were obtained using suggestive procedures and the State failed to demonstrate that the identifications were independently reliable. The errors in admitting the identification evidence were not harmless.

(Filing Date: 03-07-2012)

State v. R. E.

Civil Commitment: The test for establishing whether an individual is “dangerous to self” is: 1) the state must demonstrate the person is likely to harm themselves in the near future; and 2) there must be the possibility of actual physical harm.

(Filing Date: 03-07-2012)

Woods v. Hill

Tort Law: As a matter of law, a defendant may not avoid liability for his negligence by asserting a subsequent appeal should never have happened.

(Filing Date: 03-07-2012)

Avanti Press, Inc. v. Employment Department Tax Section

Employment Law: The test for unemployment taxes under ORS 670.600 is whether the contracted party controls their “means and manner” of their performance or if there are more generalized instructions on how to produce the desired results.

(Filing Date: 02-29-2012)

Barber v. Green

Attorney Fees: Under ORS 20.082(2), prevailing parties are entitled to reasonable attorney fees, unless a defendant tenders payment to the plaintiff prior to the commencement of the action. When attorney fees to the prevailing party are mandatory, a court may determine the amount of attorney fees, but does not have discretion to not award any attorney fees.

(Filing Date: 02-29-2012)

Bigby v. Vogel

Trusts and Estates: The passing of a decedent's real property by will to a constructive testamentary trust grants a life estate to the personal representative of the estate, upon which the holder of the life estate is granted all profits derived from the land.

(Filing Date: 02-29-2012)

Brumage v. Esco Corp.

Workers Compensation: Claims for hearing loss are evaluated upon claimant’s “overall hearing loss” at the time claimant files his claim.

(Filing Date: 02-29-2012)

Cortez v. Nacco Materials Handling Group

Employment Law: The exclusive remedy provision of the workers' compensation law does not apply to "members" of an LLC, primarily because an LLC is a legal entity distinct from its members.

(Filing Date: 02-29-2012)

Dept. of Human Services v. T. M. M.

Family Law: A parent’s future availability as a fit parental resource when assessed at the termination of parental rights hearing must be reasonable when weighed against the specific and immediate needs of the parent’s children.

(Filing Date: 02-29-2012)

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

Family Law: The Oregon statutory limitation on the creation of judicial remedies for failing to file a timely appeal of a permanency hearing comports with due process unless specific circumstances arise.

(Filing Date: 02-29-2012)

State v. Capri

Sentencing: A post-prison supervision term, when added to the prison term, may not exceed the statutory maximum prison term for conviction; and a petition to enter a guilty plea does not constitute a stipulation to a post-prison supervision term if the plea makes no mention of the supervision.

(Filing Date: 02-29-2012)

State v. Cox

Evidence: Testimony of an expert witness regarding the credibility of another witness should not be submitted to the jury when there is a substantial risk of the testimony prejudicing the jury toward a third witness.

(Filing Date: 02-29-2012)

State v. Jasso

Evidence: A party must provide the trial court with an explanation of his or her objection that is specific enough to ensure that the Court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted.

(Filing Date: 02-29-2012)

T. M. B. v. Holm

Civil Stalking Protective Order: When determining a stalking protective order, there is no requisite mental state; Speech can be considered a "contact" for the purpose of a civil stalking protective order.

(Filing Date: 02-29-2012)

Washington County v. Jansen

Workers Compensation: Claimant has the burden of proving that an occupation disease is still a part of a combined condition claim after a denial by the employer.

(Filing Date: 02-29-2012)

Bailey v. Bailey

Family Law: In determining a "just and equitable" amount in spousal support payments, a goal in a dissolution of a long term marriage is to provide a standard of living comparable to the one enjoyed during the marriage.

(Filing Date: 02-23-2012)

Friends of the Columbia Gorge, Inc. v. Columbia River Gorge Commission

Administrative Law: The Columbia River Gorge National Scenic Area Act required the Columbia River Gorge Commission to include provisions in its management plan that development should take place without adversely affecting natural resources.

(Filing Date: 02-23-2012)

Oregon AFSCME Council 75, Local #2503 v. Hood River County

Labor Law: "Amount of money indicated" as used in ORS 292.055 encompasses pay to be made in accordance with a simple formula; a public employer's failure to deduct the dues on a percentage base as requested constitutes an unfair labor practice.

(Filing Date: 02-23-2012)

State v. Davis

Criminal Procedure: Circumstantial evidence may be used to establish trial venue.

(Filing Date: 02-23-2012)

State v. Shirk

Criminal Procedure: If consent for a search is acquired during an unlawful custodial interrogation, evidence from that search should be suppressed if there are no circumstances that attenuate the link between the consent and the interrogation.

(Filing Date: 02-23-2012)

Cruze v. Hudler

Appellate Procedure: When the Court misstates an immaterial fact in an opinion, it may still reconsider the opinion, but only to make a minor correction to the prior opinion to delete the misstatement in question.

(Filing Date: 02-15-2012)

Derkatsch v. Thorp, Purdy, Jewett, Urness & Wilkinson

Attorney Fees: Attorney's fees can be recovered from the client's trust pursuant to ORS 125.095 for services rendered while the client was designated a protected person.

(Filing Date: 02-15-2012)

Dew v. Bay Area Health District

Evidence: Under Oregon Evidence Code 401, evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. In this case, the exclusion of medical testimony could make any fact of consequence to the determination of the action more probable than without the evidence.

(Filing Date: 02-15-2012)

Hayward v. Belleque

Post-Conviction Relief: The reasonableness of trial counsel's performance is evaluated from the counsel's perspective at the time of the alleged error and in light of all the circumstances.

(Filing Date: 02-15-2012)

State v. Dimmick

Criminal Procedure: Police inventories must be managed pursuant to a properly administered administrative program that does not involve exercise of discretion of the police. When the evidence in joined cases is sufficiently simple and distinct, jury instruction can cure any possible prejudice.

(Filing Date: 02-15-2012)

State v. Jimenez-Correo

Criminal Law: In the sale of marijuana, the culpable mental state requirement does not include the element of the recipient's age under former ORS 475.995 (2001).

(Filing Date: 02-15-2012)

State v. Leino

Criminal Procedure: A records and warrant check by a police officer during a lawful traffic stop does not unlawfully extend or expand the scope of the traffic stop in violation of Art. I, section 9 of the Oregon Constitution.

(Filing Date: 02-15-2012)

State v. Rubio

Sentencing: When a sentencing court commits an error the Court of Appeals must remand the entire case for resentencing if there are options which the sentencing court may adopt. Where defendant's theory does not focus on an issue that matter is collateral, and while relevant, its probative value may be substantially outweighed by risk of misleading the jury.

(Filing Date: 02-15-2012)

Steele v. Water Resources Commission

Water Rights: For a petitioner to properly challenge an agency’s final order, petitioner must show that erroneous factual findings or erroneous interpretations of conclusions of law in the agency’s final order produced an improper result that is within the court’s authority to review.

(Filing Date: 02-15-2012)

Willamette Oaks, LLC v. City of Eugene

Land Use: The Land Use Board of Appeals did not err in determining that certain modifications to a tentative planned unit development would only result in insignificant changes and were therefore permissible. Also, the petitioner must have preserved the issue of reversing instead of remanding to argue that the case should have been remanded, if it was not plain error.

(Filing Date: 02-15-2012)

Caldeen Construction, LLC v. M. Mark Kemp

Criminal Law: A trial court abuses its discretion in dismissing an amended complaint in an attorney negligence claim where the plaintiff attempts to amend the complaint to allege that but for the defendant's negligence, the outcome in the underlying case would have been different.

(Filing Date: 02-08-2012)

Denucci v. Henningsen

Tort Law: The 180-day time limit for filing a claim under the Oregon Tort Claims Act begins when the plaintiff knows, or with reasonable care should know that an injury has occurred and that it is possible for a jury to agree with the plaintiff's argument under the circumstances of the case.

(Filing Date: 02-08-2012)

Dept. of Human Services v. J. B.

Juvenile Law: Paternity over a child is established in ORS 109.070 (1). Moreover, an outdated Voluntary Acknowledgment of Paternity (VAP) fails to establish paternity of a parent, and thus is fatal to the parent's effort to become the legal parent.

(Filing Date: 02-08-2012)

Mentor Graphics Corp. v. Velazquez

Workers Compensation: If the Court of Appeals cannot determine from records of the Workers' Compensation Board whether it found that a claimant proved the existence of an occupational disease, not just symptoms, then the Court may remand the case so that the board may address that point.

(Filing Date: 02-08-2012)

OR-OSHA v. CC & L ROOFING CO., INC.

Evidence: Under ORS 654.086, OR-OSHA has the burden of persuasion to show constructive knowledge. Employer evidence to show “reasonable diligence” in compliance is not an affirmative defense “because it negates the knowledge element of a serious violation.”

(Filing Date: 02-08-2012)

PGE v. Ebasco Services, Inc.

Civil Procedure: A court may not enter a judgment awarding more damages than the plaintiff sought in its complaint, unless the party against whom the judgment will be entered had reasonable notice and an opportunity to be heard.

(Filing Date: 02-08-2012)

Portland Police Association v. City of Portland

Labor Law: If a collective bargaining agreement (CBA) unambiguously makes the parties’ dispute subject to a grievance procedure involving arbitration, any ambiguity with respect to which subjects are arbitrable under the CBA is resolved in favor of arbitrability.

(Filing Date: 02-08-2012)

Pressing Matters v. Carr

Workers Compensation: To preserve a claim of premature closure, it is sufficient that the record contain information from which the appellant reviewer could determine that the claimant was challenging the closure of the claim.

(Filing Date: 02-08-2012)

State v. Frey

Criminal Law: Where an action is a material fact to proving whether defendant committed a crime, the court shall give the jury a "Boots instruction." That is, at minimum 10 jurors must concur that a defendant intended to commit the crime, and that he intended to commit a material fact to that crime.

(Filing Date: 02-08-2012)

State v. Gruntz

Criminal Procedure: To determine whether the affidavit in support of a search warrant is sufficient, the state applies the reasoning of State v. Castilleja. That is, the court’s function is limited in scope to determining whether a magistrate could have reasonably concluded the facts in an affidavit established probable cause for a search warrant.

(Filing Date: 02-08-2012)

State v. Mills

Sentencing: Per State v. Lauers, first-degree arson convictions arising under the same section of the criminal code may be merged. However, an assignment of error for failure to merge is not preserved unless it is presented before the trial court during the sentence hearing.

(Filing Date: 02-08-2012)

State v. Codon

Evidence: It is plain error for a trial court to admit a medical expert's diagnosis of sexual abuse in the absence of physical findings to support the diagnosis; inferences, for purposes of the plain error analysis, must be plausible.

(Filing Date: 02-01-2012)

State v. Ferguson

Evidence: A witness may not give testimony, expert or otherwise, as to the credibility of whether he or she believes another witness is telling the truth.

(Filing Date: 02-01-2012)

State v. Jimenez

Criminal Law: Under State v. Magel, the test for cases involving a threat takes into account whether the defendant expressed an intent to harm the victim, and whether that expression could compel the victim to engage in sexual contact.

(Filing Date: 02-01-2012)

Alto v. City of Cannon Beach

Civil Procedure: A person has statutory standing to challenge a vesting determination under section 5(3) of Measure 49 if the person: (1) owns the property that is the subject of that vesting determination or (2) timely submitted written evidence, arguments, or comments to a public entity concerning the vesting determination.

(Filing Date: 01-25-2012)

Bell v. Tri-Met

Civil Procedure: In an action for a personal injury brought against a public entity after a decedent's death, a two-year statute of limitations applies.

(Filing Date: 01-25-2012)

Berry v. Huffman

Attorney Fees: Attorney fees will not be authorized if the judgment awarding the fees is related to the enforcement of an original marriage dissolution judgment and not a judgment to "set aside, alter, or modify" a previous judgment.

(Filing Date: 01-25-2012)

Butcher v. SAIF

Workers Compensation: Following a modification of a worker's compensation claim, the employee is entitled to total disability compensation as authorized by her doctor, regardless of whether the curative treatment was in the place of hospitalization.

(Filing Date: 01-25-2012)

Dept. of Human Services v. N. T.

Family Law: A Juvenile Court cannot rely on extrinsic facts outside of its jurisdictional judgment when it assesses a permanency plan where such a plan does not implicitly or explicitly encompass those extrinsic facts.

(Filing Date: 01-25-2012)

Lucke v. DPSST

Administrative Law: An order for summary determination favorable to the moving party shall be issued if evidence in the record for the case shows that there is no genuine issue of any material fact that is relevant to resolution of the legal issue as to which a decision is sought.

(Filing Date: 01-25-2012)

Register Guard v. Employment Dept.

Employment Law: Decisions to affirm or reverse an Administrative Law Judge's decision to grant or deny unemployment benefits must be supported by substantial evidence.

(Filing Date: 01-25-2012)

State ex rel Juv. Dept v. S.J.P

Juvenile Law: A Juvenile Court may not order as compensatory damages against a youth if such damages are not recoverable as a remedy to a civil action.

(Filing Date: 01-25-2012)

State v. Brooks

Evidence: Testimony by a witness regarding an out-of-court statement by a non-witness about the credibility of the victim is not inadmissible. An error by the trial court is harmless when the trial court explicitly indicates that it is not relying on the incorrectly admitted evidence.

(Filing Date: 01-25-2012)

State v. Smith

Criminal Procedure: A seizure occurs if an officer manifests a “show of authority” that restricts an individual’s “freedom of movement.”

(Filing Date: 01-25-2012)

Tonquin Holdings, LLC v. Clackamas County

Land Use: Zoning ordinance 1203.01 prohibits approval of a conditional use that substantially limits primary uses of adjacent property. Where both general and special standards are applicable both shall apply, but where the two standards conflict the special standards shall control.

(Filing Date: 01-25-2012)

Elk Creek Management Company v. Harold Gilbert

Landlord Tenant: Retaliatory eviction requires the landlord to have the intention to cause disadvantage to the tenant, motivated by some sort of injury the tenant has caused the landlord. Temporal proximity of a tenant’s complaint to a landlord and subsequent eviction is not sufficient for a tenant to establish a presumption of retaliation that would shift the burden to the landlord to demonstrate the eviction was not retaliatory.

(Filing Date: 01-05-2012)

Gambaro v. Dept. of Justice

Civil Procedure: To overcome an adverse ruling on appeal, the appellant must overcome each alternative ground used by the trial court to justify its holding.

(Filing Date: 01-05-2012)

Hemingway and Mauer

Family Abuse Prevention Act: In exercising its discretion, the trial court has the authority to control the presentation of evidence and the examination of witnesses. The exercise of authority is reasonable only if it is fundamentally fair and allows opportunities for a reasonably complete presentation of evidence and argument.

(Filing Date: 01-05-2012)

Robinson v. Harley-Davidson Motor Company

Civil Procedure: To establish personal jurisdiction, a plaintiff must allege sufficient minimum contacts by the defendant with the forum state, and that the claim arises out of those contacts.

(Filing Date: 01-05-2012)

State v. Anthony

Evidence: A hearsay statement is admissible if (1) the declarant is unavailable, (2) the statement is inculpatory, and (3) there is corroboration of the trustworthiness of the statement.

(Filing Date: 01-05-2012)

State v. Kinkade

Criminal Procedure: Under State v. Ashbaugh, a seizure occurs when law enforcement intentionally and significantly restricts an individual’s liberty and under the totality of the circumstances that person believes he lost his liberty.

(Filing Date: 01-05-2012)

Brasher’s Cascade Auto Auction, Inc. v. Leon

Contract Law: For the purposes of ORS 822.045(2), an “inventory financing security interest” occurs when a dealer finances the acquisition of vehicles for the dealer’s stock by creating an interest, held by the supplier, in the vehicles, which secures the obligation owed by the dealer.

(Filing Date: 12-29-2011)

Campbell v. Clackamas County

Land Use: For a property owner's rights to vest under a Measure 49 claim, the applicant must show that they paid substantial expenditures in pursuit of development, as calculated using the factors established in Clackamas Co. v. Holmes.

(Filing Date: 12-29-2011)

Cocchiara v. Lithia Motors, Inc.

Employment Law: The status of “at will” employment does not change despite offers of alternative employment by the employer to accommodate employees with disabilities.

(Filing Date: 12-29-2011)

Department of Human Services v. C.L.C.

Juvenile Law: Evidence of irresponsibility, dishonesty, and instability that demonstrate a parent’s inability to provide proper care for his or her children over an extended period of time can be sufficient to show that the parent’s mental health issues were seriously detrimental to the children at the time of trial for the purposes of terminating parental rights.

(Filing Date: 12-29-2011)

Man-Data, Inc v. B & A Automotive, Inc

Insurance Law: Sureties may raise any defense available to the principle obligor, even after a default order against the obligor, in an action against the sureties as individuals.

(Filing Date: 12-29-2011)

Martin v. SAIF

Workers Compensation: The director of the Department of Consumer and Business Services has the authority to change the date of injury in a notice of closure as part of his duty to determine the amount of compensation to which the claimant is entitled.

(Filing Date: 12-29-2011)

Orchard v. Mills

Post-Conviction Relief: To constitute a "criminal episode" under ORS 131.505(4) so as to warrant a "shift-to-I" criminal history score, the defendant's criminal actions must be continuous and uninterrupted conduct that establishes at least one offense and is so joined in time, place and circumstances, but that such conduct was directed towards the accomplishment of a single criminal objective.

(Filing Date: 12-29-2011)

Rushby and Rushby

Family Law: Retirement accounts accrued during marriage shall be construed as martial property, regardless of payout status, for the purposes of marital dissolution.

(Filing Date: 12-29-2011)

SAIF v. Owens

Workers Compensation: An attending physician must affirmatively release a claimant to work at the job at injury before a claim may be closed; if the job-at-injury is incorrectly identified, the physician has not affirmatively released the claimant. The only evidence that the board may consider when evaluating impairment findings is the report from the medical arbiter and the attending physician.

(Filing Date: 12-29-2011)