Willamette Law Online

Oregon Supreme Court

2012

( 2 summaries )

January

Carson v. Kroger

Ballot Titles: A "no" vote result statement under ORS 250.035(2) must be a simple and understandable statement under 25 words that describes the result of a "no" vote, or a rejection of the measure.

(Filing Date: 01-12-2012)

In re Marandas

Civil Law: An attorney may refuse to disclose the details of a settlement agreement due to confidentiality concerns if there is a basis in law and fact for such a claim and the actions taken do not prejudice the administration of justice.

(Filing Date: 01-12-2012)

( 5 summaries )

February

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

Family Law: The Supreme Court has an obligation to consider relevant context when interpreting a statute, regardless of whether it was cited by any party. The relevant context includes ORS 419B.090(4) which provides that the due process rights of parents are always implicated in the construction and application of the provisions of ORS chapter 419.

(Filing Date: 02-16-2012)

Girod v. Kroger

Ballot Titles: As written, ballot titles must be accurate, state the scope of their effect, and comply with ORS 250.035(2).

(Filing Date: 02-16-2012)

Weber Coastal Bells v. Metro

Land Use: Metro did not exceed its statutory authority when it approved a land use order on the basis of political necessity because the act that granted it authority for such approval did not state otherwise.

(Filing Date: 02-16-2012)

Greenwood Products v. Greenwood Forest Products

Appellate Procedure: The Court held the Court of Appeals’ reversal incorrectly relied on the “no obligation” provision of the asset purchase agreement in question. That particular issue was not raised in the trial court and therefore was not preserved for appeal.

(Filing Date: 02-24-2012)

Paul v. Providence Health System-OR

Tort Law: Plaintiffs cannot recover for speculative, future financial harm or emotional distress related to a risk of loss when a current injury has not been claimed.

(Filing Date: 02-24-2012)

( 3 summaries )

March

State v. Cabanilla

Criminal Law: Under ORS 813.100, the statute is satisfied if the officer informs the driver of the rights and consequences of refusing a breath or blood test in English, even if he is primarily a Spanish speaker.

(Filing Date: 03-01-2012)

Green v. Kroger

Ballot Titles: Under ORS 250.085, the Supreme Court may review arguments concerning language that was removed from the title after the comment period had ended. Further, the language "corporate income" is misleading when it is meant to refer solely to taxable income.

(Filing Date: 03-15-2012)

State v. Langley

Criminal Procedure: The Court cannot infer an intentional and knowing waiver of the right to counsel and compel a defendant to proceed pro se when the defendant never expressly waived the right, but rather remained silent when given the choice of affirmatively accepting his current counsel or proceeding pro se.

(Filing Date: 03-29-2012)

( 3 summaries )

April

Eads v. Borman

Tort Law: An entity may be held vicariously liable for a physician’s negligence on the theory of apparent agency when: (1) the entity holds out the physician as an agent delivering medical services on behalf of the entity subject to oversight and control of the entity; and (2) the injured plaintiff reasonably relied on these representations, which led him to believe the entity was the provider of care.

(Filing Date: 04-26-2012)

State v. Jarnagin

Criminal Procedure: Statements from an interrogation administered without a Miranda warning that provide the basis for a voluntary reenactment sufficiently taint the reenactment such that it is unconstitutional. Additionally, notifying the defendant of his Miranda rights after initial interrogations will not be held as an invalid reading of rights if there was a substantial break in time and change of circumstances from previous interrogations.

(Filing Date: 04-26-2012)

State v. Miskell/Sinibaldi

Criminal Procedure: Under ORS 133.726(7)(b), an exigency exception to the ex parte order requirement for surveillance must be demonstrated by evidence that swift action is necessary to prevent harm to persons or property, the escape of a suspect, destruction of evidence or the like.

(Filing Date: 04-26-2012)

( 2 summaries )

May

State v. Eumana-Moranchel

Evidence: When there is a delay between a DUII arrest and a breath or blood test, the State may offer expert testimony explaining retrograde extrapolation to establish a defendant's blood alcohol content (BAC) was over the limit at the time defendant was driving.

(Filing Date: 05-10-2012)

State v. McDowell

Criminal Procedure: For purposes of ORS 136.290, which limits the time a defendant may be held in custody pending his trial to 60 days after the arrest, if the accusatory instrument is dismissed and the defendant is re-arrested and re-indicted on the same charges shortly thereafter, the time in custody is measured from the date of the original arrest.

(Filing Date: 05-24-2012)

( 9 summaries )

June

State v. Bray

Criminal Procedure: Under ORS 147.537(8), an interlocutory appeal from a contested court order must be brought within 7 days from the issuance of the order.

(Filing Date: 06-07-2012)

State v. Moss

Appellate Procedure: For purposes of ORAP 8.05(3), the word "surrender" means a voluntary act, not an act in response to force or compulsion.

(Filing Date: 06-07-2012)

Doe v. Corp. of Presiding Bishop

Constitutional Law: Article I, section 10 of the Oregon Constitution places it within the discretion of the trial court to vacate its own protective orders as well as to may release redacted copies of exhibits to the public.

(Filing Date: 06-14-2012)

In re Goff

Attorney Fees: A decision of the Oregon State Bar Disciplinary Panel will be upheld if the record clearly and convincingly demonstrates that a violation occurred.

(Filing Date: 06-14-2012)

Clackamas County Assessor v. Village at Main Street Phase II, LLC

Attorney Fees: The Tax Court may only consider the factors specified in ORS 20.075(1) when exercising its discretion to award attorney fees. Additionally, when considering whether or not an enforcing agency has a reasonably interpretation of a statute, a tax court should consider whether and how it has been construed by the Supreme Court.

(Filing Date: 06-28-2012)

SAIF v. DeLeon

Attorney Fees: Under ORS 656.382(2), when a claimant obtains an award of attorney fees and the insurer initiates a review, it is the final decision and tribunal that determines whether the award should be disallowed or reduced.

(Filing Date: 06-28-2012)

State v. Bowen

Appellate Procedure: Entry of a corrected judgment on remand does not trigger the alternative sentencing procedures provided in ORS 138.012(2)(a).

(Filing Date: 06-28-2012)

State v. McBride

Criminal Law: Under ORS 163.575(1)(b), the state must prove that the defendant engaged in affirmative conduct which authorized or made it possible for minors to be present during the course of illegal drug activity.

(Filing Date: 06-28-2012)

Weber Coastal Bells Limited Partners v. Metro

Land Use: Language in a land use final order on remand which contradicts the LUBA holding is surplusage and without legal effect. A party automatically has standing before the Supreme Court by virtue of participation in LUBA hearings.

(Filing Date: 06-28-2012)

( 5 summaries )

July

In re Obert

Professional Responsibility: A suspension of 6 months from the practice of law is reasonable for the violation of 7 Rules of Professional Conduct stemming from the misappropriation of client funds and failure to provide competent representation.

(Filing Date: 07-19-2012)

State v. Leistiko

Evidence: Prior acts are admissible if they are "sufficiently relevant" to show the defendant acted with intent in the charged offense. However, the admissibility of the prior act is dependent on the circumstances. A single act will likely not qualify, but a complex act may qualify.

(Filing Date: 07-19-2012)

State v. Powell

Evidence: Under ORS 136.425(1), incriminatory statements that are made under promises of leniency are inadmissible as evidence.

(Filing Date: 07-19-2012)

Willemsen v. Invacare Corporation

Civil Procedure: In light of the U.S. Supreme Court Opinion, J. McIntyre Machinery, Ltd. v. Nicastro, personal jurisdiction is established when a company has a "regular course of sales," or a "regular...flow" of sales within the forum state.

(Filing Date: 07-19-2012)

Mead v. Legacy Health System

Tort Law: When a physician has not personally seen a patient, whether an implied physician-patient relationship is created depends on whether the physician knows or reasonably should know that he or she is diagnosing a patient’s condition or is treating the patient.

(Filing Date: 07-26-2012)

( 4 summaries )

August

In re Avera

Professional Responsibility: Under the Oregon Code of Judicial Conduct 2-101, a judge's performance of judicial duties shall take precedence over all other activities and the judge shall not neglect the business of the court.

(Filing Date: 08-02-2012)

State v. Klein

Evidence: Under ORS 133.721 an aggrieved person who has standing to move to suppress evidence obtained pursuant to a body-wire is a party to an intercepted communication or a person against whom the interception was directed.

(Filing Date: 08-02-2012)

State v. Haynes

Appellate Procedure: In order to preserve an issue for appeal with a single word or phrase, it must be used in a context that allows the court and the other parties to understand that it refers to a particular legal or factual argument and the essential contours around the full argument.

(Filing Date: 08-16-2012)

State v. Mullins

Appellate Procedure: The 30 day statute of limitations for filing an appeal of a judgment under ORS 138.071(4) begins to run at the time an attorney of record for the defendant has notice of a judgment.

(Filing Date: 08-23-2012)

( 5 summaries )

September

Morgan v. Amex Insurance Company

Attorney Fees: ORS 742.001 does not limit the scope of ORS 742.061 to only those insurance policies delivered or issued for delivery in Oregon.

(Filing Date: 09-14-2012)

Ann Sacks Tile and Stone, Inc. v. Dept. of Rev.

Civil Procedure: Supreme Court lacked jurisdiction over the case because taxpayers filed a notice of appeal using electronic service, which was contrary to ORCP 9 G.

(Filing Date: 09-20-2012)

M.K.F. v. Miramontes

Civil Procedure: Under ORS 30.866, if a plaintiff seeks both an injunctive order and a judgment for compensatory money damages, the parties are entitled to a jury trial on the claim for money damages.

(Filing Date: 09-20-2012)

State v. Blok

Appellate Procedure: The Court may exercise their discretion to dismiss an alternative writ if it is not presented in the relator's brief or petition.

(Filing Date: 09-20-2012)

Burke v. DLCD

Land Use: Under ORS 195.328(18), the word “owner” as it is used in section 6 of Measure 49, includes all individuals who are either an owner in fee title, purchaser under land sale contract, or a trustee in the property.

(Filing Date: 09-27-2012)

( 7 summaries )

October

Halperin v. Pitts

Attorney Fees: Pursuant to ORS 20.080(2), defendants who prevail in small tort actions do not need to have delivered a prelitigation demand letter in order to obtain attorney fees.

(Filing Date: 10-04-2012)

Hazell v. Brown

Constitutional Law: Campaign finance reform laws, contained within Measure 47, limiting campaign contributions, are inoperable until such time that the Oregon Constitution is amended to grant these provisions a constitutional basis.

(Filing Date: 10-04-2012)

In re Walton

Professional Responsibility: The Oregon Supreme Court independently determines sanctions for reciprocal discipline proceedings when the lawyer's conduct also violates Oregon's professional rules.

(Filing Date: 10-11-2012)

State v. Burgess

Criminal Procedure: The State is precluded from raising a legal theory on appeal that was not argued at the trial level because the defendant may have developed the record differently had the issue been addressed at trial.

(Filing Date: 10-11-2012)

State v. Rogers

Criminal Procedure: An empaneling of an anonymous jury requires a finding that there are strong and particular grounds for jury identity protection. When the State relies on a defendant's history as a basis for its decision to impose capital punishment, it must demonstrate a close link between that history and defendant's future dangerousness.

(Filing Date: 10-11-2012)

Assoc. Unit Owners of Timbercrest Condo v. Warren

Appellate Procedure: A motion for reconsideration of a summary judgement does not constitute a motion for a new trial within the meaning of ORS 19.255(2) and ORCP 64.

(Filing Date: 10-18-2012)

State v. Pitt

Evidence: Prior bad act evidence is not admissible to bolster a victim's credibility in identifying her abuser if there is ongoing contact between the victim and defendant. Prior bad act evidence is also not admissible to prove intent until facts establishing the charged conduct have been introduced.

(Filing Date: 10-18-2012)

( 9 summaries )

November

State v. Sarich

Evidence: Under OEC 601, an inquiry regarding whether an individual is competent enough to testify involves gathering whether that person has the ability to perceive, recollect, and communicate in a worthwhile manner.

(Filing Date: 11-01-2012)

Gunderson, LLC, v. City of Portland, et al.,

Land Use: Requiring industrial landowners in the "North Reach" area of the Willamette River to submit development plans for approval by a River Review process to ensure the goals of the 1973 Willamette River Greenway plan is within the power of the City of Portland.

(Filing Date: 11-08-2012)

State v. Leistiko

Appellate Procedure: On a petition for reconsideration, the Supreme Court may decline to address an issue if the issue was not raised in a lower court.

(Filing Date: 11-08-2012)

State v. Lewis

Criminal Law: Criminal negligence does not require that a defendant’s conduct be seriously blameworthy, rather, it requires that a defendant fail to be aware of a substantial and unjustifiable risk which constitutes a gross deviation from a reasonable standard of care under the circumstances.

(Filing Date: 11-08-2012)

Hope Presbyterian Church of Rogue River v. Presbyterian Church USA

Property Law: Under the neutral principles approach to church property, an church affiliate holds its property in an irrevocable trust for the national organization when the national organization's constitution and the affiliate's own documents declare their intent that the property is held in trust.

(Filing Date: 11-29-2012)

PSU Association of University Professors v. PSU

Employment Law: Pursuant to ORS 659A.030(1)(f), a public university may not discontinue employee grievance procedures when a public employee's contract mandates such procedures, even when the employee seeks statutory discrimination relief.

(Filing Date: 11-29-2012)

State v. Lawson

Evidence: The Classen Test of eyewitness testimony has been revised. The state must show that the eyewitness has personal knowledge of all the facts to which he will testify, and prove that the identification was rationally based on the witness' first hand perceptions and will be helpful to the trier of fact.

(Filing Date: 11-29-2012)

State v. Sanchez-Alfonso

Evidence: Whether evidence is sufficiently reliable to admit under OEC 702 requires an expert to explain what his or her expertise is, how the information is gathered, how the information is used in reaching his or her conclusion, and what scientific basis supports each step of that process.

(Filing Date: 11-29-2012)

State v. Bray

Appellate Procedure: Placing evidence on the record as a sealed exhibit for appellate review does not qualify as discovery.

(Filing Date: 11-30-2012)

( 8 summaries )

December

Downer v. Dept. of Revenue

Tax Law: Tax assessments will be upheld where a tobacco distributor purchases tobacco for redistribution from a business on a tribal reservation in Washington.

(Filing Date: 12-06-2012)

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

Evidence: Under EOC 801(4)(b)(A), an individual's out-of-court statement cannot be used as a statement of a party opponent unless there is evidence that the individual declared an adverse position to a party in the hearing.

(Filing Date: 12-13-2012)

State ex rel Portland Habilitation Center, Inc. v. Portland State University

Remedies: Under ORS 34.110 a relator is not entitled to mandamus relief if a plain, speedy, and adequate remedy at law is available.

(Filing Date: 12-13-2012)

State v. Marsh & McLennon Companies

Civil Law: ORS 59.137, allowing a party to recover damages from fraud or misrepresentation in a sale or purchase of securities, requires a party to show some sort of reliance, but the party may rely on the "fraud-on-the-market" doctrine to do so.

(Filing Date: 12-13-2012)

Synectic Ventures I, LLC v. EVI Corp.

Corporations: A managing member of a Limited Liability Company (LLC) may not enter into agreements in which there exists a personal conflict of interest unless the operating agreement explicitly allows him or her to enter into such agreements. If the managing member does enter into an agreement with a conflict of interest, there is a breach of the duty of loyalty and the LLC is not bound by the agreement as the managing member no longer had the authority to enter into it.

(Filing Date: 12-20-2012)

Weldon v. Board of Licensed Professional Counselors and Therapists

Administrative Law: The text of ORS 676.210 grants courts statutory power to enter injunctions. It does not deprive the court's ability to enter stays of an agency's order suspending a health care professional's occupational license and therefore does not impede on the courts inherent judicial powers.

(Filing Date: 12-20-2012)

In re Clark

Professional Responsibility: Under BR 10.7, a prevailing party is entitled to costs and disbursements. Additionally, the purpose of BR 10.7 is to attempt to settle disputes before a hearing, and allowing a waiver of the timeliness requirement would undermine this purpose.

(Filing Date: 12-28-2012)

Bresee Homes, Inc. v. Farmers Ins. Exchange

Insurance Law: An insurer may owe a duty to defend its insured and summary judgment is inappropriate when the date of breach is insufficient to determine whether the completed operations hazard exception applies.

(Filing Date: 12-31-2012)