Willamette Law Online

(55 summaries)

Steven Mastanduno

Oregon Supreme Court

TitleExcerptFilling Date
Sea River Properties, LLC v. ParksProperty Law: Accreted land attaches to the property on which it begins to accrete. Adverse possession requires actual use of land – payment of property taxes is a manifestation of actual use, but is not itself actual use. (08-14-2014)
In re SpencerProfessional Responsibility: A lawyer, acting as a real estate broker and lawyer for his client, violates RCP 1.8(a) if he does not advise his client to seek outside legal advice about the problems of dual representation, and does not obtain written consent. (06-26-2014)
State v. WashingtonSentencing: Under ORS 138.012, all death sentences come before the Supreme Court on automatic and direct appeal. In this case, all of defendant's assignments of error were rejected. (06-19-2014)
McCann v. RosenblumBallot Titles: Use of the term "tax" when describing money collected by the government was appropriate in a ballot measure, but referring to a "wholesale sales tax" was not because it could be confused with a retail sales tax. (05-30-2014)
Bates v. RosenblumBallot Titles: Under ORS 250.085, the Supreme Court may either refer an errant ballot title to the Attorney General for modification, or correct it, certifying the resulting ballot title to the Secretary of State. (05-08-2014)
Kohring v. BallardCivil Procedure: Under ORS 14.080(2), wherever a corporation or partnership conducts “regular, sustained business activity” is where its normal and ordinary business activities are sustained, which requires evaluation of the quantitative nature of the corporation or partnership’s activity and the frequency of that activity. (04-24-2014)
Sunset Presbyterian Church v. Brockamp & Jaeger, Inc.Contract Law: In a construction contract specifying the issuance of a Certificate of Substantial Completion as a deadline for the accrual of claims, summary judgment is not appropriate if the date of completion is contested; while evidence of being used for its intended purpose is evidence of completion, that does not eliminate the need for a Certificate of Substantial Completion. (04-24-2014)
Westfall v. StateSovereign Immunity: Under ORS 30.265(6)(c), government employees responsible for applying policies enacted by high-level officials are protected by discretionary immunity when following the explicit orders of their superiors.(04-10-2014)
Montez v. CzerniakPost-Conviction Relief: In post-conviction proceedings, petitioner bears the burden of proving inadequate assistance of counsel. Counsel’s trial strategy must be unreasonable, without appropriate consideration for risks and benefits, for petitioner to prevail. (03-20-2014)
Peace River Seed Co-Op v. Proseeds MarketingContract Law: An aggrieved seller who has resold goods can recover the difference between contract price and market price under ORS 72.7080(1), even when market price damages would exceed resale damages under ORS 72.7060. (03-20-2014)
McCann/Harmon v. RosenblumBallot Titles: Under ORS 250.035, a ballot title must include a caption, results statements, and summery which adequately describe the effects of voting one way or another, and reasonably identify the subject matter. Where more specific language is available, it should be used to describe the ballot title in a simple and understandable way that adequately describes the effects a ballot title would have on current law.(01-30-2014)
State v. StarkCriminal Procedure: For the purposes of ORS 166.207(3)(a), the felon-in-possession statute, a defendant whose previous felony conviction has been reduced to a misdemeanor is excluded, but only if that reduction was in effect before a defendant was charged as a felon in possession.(08-15-2013)

Oregon Court of Appeals

TitleExcerptFilling Date
State v. EtzelCriminal Law: For the purposes of second-degree burglary, that a door is unlocked is not dispositive of the building not being a public space. (08-13-2014)
State v. OsornoCriminal Procedure: An inadvertent revelation that Defendant invoked her right to remain silent was grounds to grant motions for mistrial and a new trial. (08-13-2014)
State v. PassCriminal 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. (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. (08-13-2014)
V.L.M. v. MileyCivil 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. (08-13-2014)
Fountaincourt Homeowners’ Assn. v. Fountaincourt Development, LLCInsurance 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.(08-06-2014)
State v. McCulloughCriminal 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. (08-06-2014)
The Foster Group, Inc. v. City of Elgin, OregonTort 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.(07-30-2014)
State v. ToddCriminal 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. (07-23-2014)
State v. Durando, IIIAppellate 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.” (07-16-2014)
State v. FerraroCriminal 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. (07-16-2014)
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. (07-03-2014)
Safeco Ins. Co. v. MasoodContract 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. (07-02-2014)
State v. Salas-JuarezAppellate 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.(07-02-2014)
State v. ThackerCriminal 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. (07-02-2014)
State v. MarkerCriminal Law: Under ORS 163.305(5), a person who is asleep is “physically helpless.”(06-18-2014)
State v. MartinezCriminal 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.(06-18-2014)
State v. ShutoffCriminal 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.(06-18-2014)
Alfieri v. SolomonCivil 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. (06-11-2014)
Chapman v. MayfieldTort 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. (06-11-2014)
State v. NelsonCriminal 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. (06-11-2014)
State v. Ruiz-PizaCriminal 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. (05-30-2014)
State v. JimenezCriminal 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.(05-21-2014)
State v. PichardoCriminal Procedure: When consent is given to a search after questioning that unlawfully extends a stop, evidence obtained must be suppressed. (05-21-2014)
Cardona and CardonaFamily 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. (04-23-2014)
State v. Rodriguez-PerezCriminal 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. (04-09-2014)
State v. MedinaCriminal 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.” (04-02-2014)
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. (03-26-2014)
State v. BistrikaCriminal Law: Jury instructions which insert an irrelevant issue into a case constitute a reversible error. (03-26-2014)
State v. SmithEvidence: 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. (03-26-2014)
D.W.C. v. CarterCivil 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. (02-20-2014)
Talbott v. Teacher Standards & Practices CommissionAdministrative 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.(12-26-2013)
State v. DickersonCriminal 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. (12-18-2013)
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. (11-27-2013)
State v. BurnsCivil 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. (11-14-2013)
State v. OliveCriminal 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. (10-23-2013)
State v. GoffEvidence: Under OEC 404(3), evidence of prior misconduct is inadmissible to show intent if defendant has not admitted the act in question. (10-09-2013)
Blue Iguana, Inc. v. Oregon Liquor Control CommissionAdministrative 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. (09-18-2013)
State v. WhitmoreEvidence: 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.(07-24-2013)
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.(07-03-2013)
State v. BrownEvidence: 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.(05-30-2013)
N.J.R. v. KoreFamily 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.(05-08-2013)
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.(04-17-2013)