Willamette Law Online

(19 summaries)

Andrew Evenson

Oregon Supreme Court

TitleExcerptFilling Date
State v. OfodrinwaCriminal Law: Pursuant to ORS 163.425, a person commits the crime of second-degree sexual abuse when "that person subjects another person to sexual intercourse and the victim does not consent thereto." The phrase "does not consent" refers to the victim's lack of capacity to consent due to age, as well as to the lack of actual consent.(04-25-2013)
Assoc. Unit Owners of Timbercrest Condo v. WarrenAppellate 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.(10-18-2012)
In re AveraProfessional 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.(08-02-2012)
State v. LangleyCriminal 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.(03-29-2012)

Oregon Court of Appeals

TitleExcerptFilling Date
Sparling v. Providence Health System OregonWorkers 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. (08-21-2013)
Sparling v. Providence Health SystemsWorkers 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. (08-21-2013)
ZRZ Realty Company v. Beneficial Fire and Casualty InsuranceInsurance 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.(03-06-2013)
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.(02-06-2013)
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.(01-09-2013)
Bumgarner v. NoothCriminal 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.(12-12-2012)
SERA Architects, Inc. v. Klahowya Condominium, LLCRemedies: 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.(11-07-2012)
State v. WallCriminal 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.(09-26-2012)
State v. ErivesAppellate 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.(08-29-2012)
C. J. P. v. LempeaFamily 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.(08-15-2012)
State v. McCarthyEvidence: 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.(07-18-2012)
State v. DennisCriminal 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.(06-27-2012)
Mark Latham Excavation, Inc. v. Deschutes CountyLand 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(06-20-2012)
State v. GaskillSentencing: 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.(05-16-2012)
Awbrey Towers v. Western Radio ServicesAttorney 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.(04-25-2012)