Willamette Law Online

( 1142 summaries )

Oregon Court of Appeals Updates

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)

Johnson v. DMV

Criminal Procedure: Under ORS 813.440(1)(d)and OAR 735-090-0120(4), an "official duty conflict" justifying the postponement of a suspension hearing is an obligatory task connected with a police officer that prevents the officer from appearing at a hearing. An officer's jury duty does not qualify.

(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)

Miller v. Board of Parole and Post-Prison Supervision

Parole and Post-Prison Supervision: A parole-release date that has been challenged, if past the date, will be deemed moot because there is no practical effect on the rights of the parties.

(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)

Neumann v. Liles

Tort Law: To avoid dismissal under ORS 31.150, Oregon’s anti-SLAPP statute, the plaintiff must demonstrate a prima facie case in support of their claim. The bar for presenting a prima facie case is low.

(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)

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)

Nkrumah v. City of Portland

Employment Law: To establish a wrongful discharge case on the basis of a "public duty" when the employee quits his or her employment, he or she must establish that the public entity created objectively intolerable working conditions, resulting in the employee's forced resignation, because of the employee's fulfillment of the asserted public duty.

(Filing Date: 02-26-2014)

Piazza v. Dept. of Human Services

Evidence: Written admissions, if used as evidence through testimony or closing argument, present cumulative evidence if presented as a jury instruction.

(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)

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)

Merrill Lynch Commercial Finance Corp. v. Hemstreet

Property Law: When a creditor has a judgment that includes both a money judgment and a foreclosure judgment, ORS 88.060 does not preclude the creditor from collecting on a money judgment independently and prior to the foreclosure sale.

(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)

McDowell Welding & Pipefitting v. US Gypsum Co.

Contract Law: Under ORS 81.010, a written offer of payment must communicate a present offer of timely payment. The prospect that payment might occur at some point in the future is not sufficient.

(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)

SAIF v. Swartz

Workers Compensation: To establish compensation for medical treatment, the accepted condition must be a material cause of claimant's current condition, and the treatment must be "for" that condition.

(Filing Date: 12-29-2011)

State v. Aronson

Constitutional Law: A police officer's act of parking several car lengths behind a person's vehicle does not constitute a show of authority or restraint of the person's liberty such that a reasonable person would not feel free to leave.

(Filing Date: 12-29-2011)

State v. Caldwell

Post-Conviction Relief: The mere existence of a restraining order does not constitute corroborating evidence sufficient to warrant a conviction for violation of a restraining order when the only other evidence presented by the state is the defendant's confession.

(Filing Date: 12-29-2011)

State v. Copeland

Constitutional Law: The public records hearsay exception is not limited to collateral matters only because 1) prior case history discussing the matter does not distinguish between “collateral” and essential facts, and 2) the framers of the Oregon Constitution incorporated several exceptions from the common law, including the public records exception.

(Filing Date: 12-29-2011)

State v. Feller

Criminal Law: The admission of a diagnosis of "concerning" for sexual abuse, without supporting physical evidence is plain error.

(Filing Date: 12-29-2011)

State v. L.D.

Civil Commitment: To commit a person involuntarily the state must show the person’s mental disorder causes them to behave in a manner that is likely to result in actual serious physical harm to them in the near future.

(Filing Date: 12-29-2011)

State v. McFarland

Criminal Procedure: In determining whether an arrest warrant's return of service form provided notice, a form has no evidentiary value when it lacks information to identify the officer who executed the arrest warrant.

(Filing Date: 12-29-2011)

State v. Snow

Criminal Procedure: A county courthouse security checkpoint search is an unreasonable administrative search if the authority for that search gives broad latitude to the searching officer in deciding who is to be searched and how intrusive the search is.

(Filing Date: 12-29-2011)

State v. Wiggins

Criminal Procedure: A vehicle is considered mobile, and thus subject to the automobile exception to the warrant requirement, when nothing occurs to render the vehicle immobile between the time of the initial encounter with the vehicle and when the subsequent search occurs.

(Filing Date: 12-29-2011)

State v. Yocum

Sentencing: If the trial court determines that evidence is sufficient for determination of restitution damages, the court may make the restitution determination, even if the value of the item is not objectively verifiable.

(Filing Date: 12-29-2011)

Strutz v. Employment Department

Employment Law: Pursuant to ORS 183.482(8)(c) the Court of Appeals reviews Employment Appeals Board decisions “to determine whether its factual findings are supported by substantial evidence,” and whether the Board's conclusions “are supported by substantial reason.”

(Filing Date: 12-29-2011)

Watson v. Meltzer

Tort Law: To prove legal malpractice, plaintiffs' must prove that they would have obtained a more favorable result "but for" the negligence of the attorney, regardless of whether the malpractice occurred during litigation or during a business transaction.

(Filing Date: 12-29-2011)

Westfall v. Oregon Dept. of Corrections

Tort Law: The State is not immune from tort liability under ORS 30.265(3)(c) if the employee action that caused the tort was the result of the employee merely implementing routine policy decisions in the course of everyday activities.

(Filing Date: 12-29-2011)

Barrett v. Williams

Habeas Corpus: A petition for habeas corpus must state more than mere conclusions; it must allege with facts which would entitle the plaintiff to habeas corpus relief. Representation by counsel in tort or post-conviction cases is not a constitutional right.

(Filing Date: 12-21-2011)

D.T. v. Department of Human Services

Administrative Law: A person is unable to consent to significant medical procedures if they are unable to reasonably comprehend the risks and benefits of the proposed procedure. In administering significant procedures without consent, a hospital must consider all other less intrusive procedures if the protesting patient affirmatively raises an alternative procedure.

(Filing Date: 12-21-2011)

State v. Delaportilla

Criminal Law: To prove second-degree assault under ORS 161.015(1), the state must present direct evidence, and not merely infer, that a dangerous weapon was used by the defendant to harm the victim.

(Filing Date: 12-21-2011)

State v. Hesedahl

Criminal Law: Verbal encouragement of a person committing an assault constitutes aiding the assault if the person was at hand, or within reach, sight, or call during the assault and presented an added threat to the victim's safety.

(Filing Date: 12-21-2011)

State v. McLaughlin

Sentencing: For the purposes of resentencing, ORS 138.222(5)(a) allows an appellate court to remand for resentencing for a determination of compensatory fines to be paid from the defendant to the victim.

(Filing Date: 12-21-2011)

State v. S.J.F.

Civil Commitment: Failure to inform the person on trial during a civil commitment hearing of their right to an attorney, right to subpoena witnesses, reason they are appearing in court, and the consequences of the proceeding constitutes plain error reviewable de novo.

(Filing Date: 12-21-2011)

State v. Taylor

Evidence: The crime-fraud exception requires the party seeking the exception demonstrate the client knew his intended conduct was unlawful.

(Filing Date: 12-21-2011)

Bailey v. Nooth

Post-Conviction Relief: Pursuant to ORS 138.590, a petitioner has a right to appointed counsel in post-conviction relief case. A trial court can deny a motion for substitution of counsel and order a petitioner to proceed pro se, only if necessary to achieve a fair, orderly, and efficient resolution of petitioner’s post-conviction case.

(Filing Date: 12-14-2011)

Davis v. Nye Ditch Users Improvement Dist.

Property Law: An improvement district created according to ORS Chapter 554 has, by implication of its power to carry out its statutory purpose, the right to gain access to its works on members' property for necessary improvements and repairs.

(Filing Date: 12-14-2011)

Frakes v. Nay

Trusts and Estates: If a court finds that there is no genuine issue of material fact concerning a trust settlor’s intent regarding how many distributions are to be made to individual beneficiaries, summary judgment is proper.

(Filing Date: 12-14-2011)

Galloway v. Nooth

Post-Conviction Relief: When post-conviction relief is granted by a showing that defendant’s trial attorney did not sufficiently investigate issues surrounding the lethality of defendant’s actions, as required element of a crime, only those crimes which require intent may be overturned. Defendant’s other convictions that do not require proof of intent are otherwise still valid.

(Filing Date: 12-14-2011)

Hamscam and Hamscam

Family Law: When reviewing de novo, the Court will review the trial court's decision to ensure it used the proper methodology when awarding marital property; property acquired before the marriage are not marital assets, but will be awarded as just and proper, factoring the parties' intent to keep it separate or turn it into join property of the marriage.

(Filing Date: 12-14-2011)

Jones v. Douglas County

Land Use: Extensions granted as authorized by OAR 660-033-0140(3), even if done in violation of the rule's requirements, are still considered granted "under" the rule and are therefore preempted from LUBA review.

(Filing Date: 12-14-2011)

Jones v. Douglas County

Land Use: HB 3166 legitimately imposes a retroactive 10-year statute of ultimate repose on the appeal of certain land use decisions because it is based upon a legitimate legislative purpose that is furthered by rational means.

(Filing Date: 12-14-2011)

Loomis v Loomis

Family Law: A dissolution court will presume equal spousal contribution to property and annuities unless one spouse rebuts such a presumption.

(Filing Date: 12-14-2011)

SAIF Corporation v. Stephens

Workers Compensation: When a claim is determined to be a symptom rather than a condition, the employer is not required to admit the symptom as a new or omitted medical condition.

(Filing Date: 12-14-2011)

Smith v. Bend Metropolitan Park and Recreation

Tort Law: ORS 30.265(3) requires that a government duty must result of a decision involving public policy, exercised by a person who has the responsibility or authority to make such a decision in order to qualify for discretionary immunity.

(Filing Date: 12-14-2011)

State of Oregon v. Louis J. Massei

Criminal Procedure: When the county in which a sexual offense took place cannot be readily determined, venue may be proper in the county where the defendant resides under ORS 131.325; however, the court will not take judicial notice of the proximity of a defendant’s address to a specific county when referencing to internet mapping sources because those sources “cannot reasonably by questioned.” OEC 201(b)(2).

(Filing Date: 12-14-2011)

State v. Barajas

Criminal Procedure: Judges that preside over a criminal trial may not waive a defendant's right to deliver a closing argument during a bench trial without first allowing an opportunity for objection.

(Filing Date: 12-14-2011)

State v. Estey

Criminal Law: In State v. Johnson the Court of Appeals held that the common law removed jurisdiction from the trial court once a defendant began serving a valid sentence. However, ORS 138.083 provides several exception to the common law rule, such as in cases of erroneous terms, factual errors, arithmetic errors, or clerical errors.

(Filing Date: 12-14-2011)

State v. Gruver

Criminal Law: A defendant’s failure to seek a restitution hearing authorized under ORS 137.106 does not constitute waiver of his or her right to seek appellate review of the restitution award.

(Filing Date: 12-14-2011)

State v. Hampton

Evidence: When an officer obtains consent to search a vehicle during an lull in the traffic stop, the fact that the search occurs after the traffic stop is complete does constitute an extension of the initial stop.

(Filing Date: 12-14-2011)

State v. McKey

Criminal Law: Like its identical statute upheld by the U.S. Supreme Court in Montana v. Egelhoff, ORS 161.125(2) lawfully makes voluntary intoxication “immaterial” to determine mental state.

(Filing Date: 12-14-2011)

State v. Moore

Criminal Procedure: The Court accepted as stare decisis the voluntary and involuntary consent factors it established in Machuca I, declaring that consent given after an auto accident is not voluntary.

(Filing Date: 12-14-2011)

State v. Prange

Evidence: Evidence of bias may be held relevant where 1) it demonstrates a witnesses' motivation to lie, and 2) is not used to prove the witnesses’ propensity to act in conformity with prior bad acts. Additionally, a party may impeach a witness for bias through evidence of the witness’s relationship with another, where the bias resulting from the relationship is a matter of reasonable inference rather than speculation.

(Filing Date: 12-14-2011)

State v. Reed

Criminal Procedure: A defendant's waiver of right to counsel is only valid if done voluntarily and knowingly; the validity of the waiver is judged by a review of the totality of the circumstances.

(Filing Date: 12-14-2011)

State v. Torres-Rivas

Evidence: A trial court’s refusal to admit evidence of a victim’s bias toward a defendant is harmless if there is other evidence in the record that tends to prove such bias.

(Filing Date: 12-14-2011)

State v. Trivitt

Family Abuse Prevention Act: Posting a sign at the residence of a third party does not constitute "interfering" with a person protected by a FAPA restraining order, and therefore is not covered by a FAPA order that prohibits an individual from intimidating, molesting, interfering with or menacing the protected person, or attempting to intimidate, molest, interfere with or menace that person directly or through third parties.

(Filing Date: 12-14-2011)

Thrifty Payless, Inc. v. Cole

Workers Compensation: "Regular work" is defined for the purposes of workers' compensation as any work that occurs on a steady, recurring basis, and affords a person their accustomed means. This includes overtime, if it occurred as defined by "regular work."

(Filing Date: 12-14-2011)

Valencia v. GEP BTL, LLC

Workers Compensation: In determining eligibility for "supplemental disability," it is a prerequisite that the complainant to provide verifiable documentation of secondary employment, and there is no investigative obligation on the employer or employer's insurance carrier.

(Filing Date: 12-14-2011)

Williamson v. Government Employees Insurance co.

Attorney Fees: Attorney fees are not recoverable under ORS 20.080 in a decision awarding "money had and received" because such recovery is based on a contract implied in law.

(Filing Date: 12-14-2011)

Department of Consumer and Business Services v. Zurich American and Northwest Staffing Services

Workers Compensation: Under ORS 656.054, the Workers’ Compensation Board does not have authority to order the insurer responsible for a claim to reimburse the assigned claims agent directly for costs incurred in processing the claimant’s claim.

(Filing Date: 12-07-2011)

Dept. Human Services v. B.L.J.

Family Law: To justify juvenile court jurisdiction over a child the Department of Human Services must prove that, under the totality of the circumstances, there exists a reasonable likelihood of harm to the child’s welfare. Additionally, there is no legal requirement that parents be able to care for their children independently of another.

(Filing Date: 12-07-2011)

Hammond v. Hammond

Property Law: In a 1985 deed conveying title, "as survivor," is an ambiguous term and should be interpreted using extrinsic evidence to determine the parties' intent.

(Filing Date: 12-07-2011)

Hunter v. Saif Corporation

Workers Compensation: A Workers' Compensation Board decision is not supported by substantial evidence when a medical expert's opinions are disregarded without the board supplying any reason for doing so.

(Filing Date: 12-07-2011)

Medean v. Moeller

Insurance Law: The 14-day time limit imposed by ORCP 68 C(4), and incorporated into ORS 31.555(3)(b), “is the exclusive means by which the insurer may offset its PIP reimbursement payment against the money award.”

(Filing Date: 12-07-2011)

State v. Glass

Constitutional Law: A procedure that requires a defendant to object to the admission of a laboratory report before trial, and subsequently allows the author of the report to testify after the objection, does not violate the Confrontation Clause of the U.S. Constitution.

(Filing Date: 12-07-2011)

State v. Hatfield

Criminal Law: Consent to search is not an incriminating response. A request for consent to search is not interrogation under the Oregon or federal Constitutions, even after a defendant’s unequivocal request for counsel.

(Filing Date: 12-07-2011)

State v. Holcomb

Criminal Law: Based on inferences made by the court, a defendant can be found guilty for transporting an accomplice and parking outside the scene during a burglary, regardless of knowledge of accomplice's intents.

(Filing Date: 12-07-2011)

State v. Laizure

Parole and Post-Prison Supervision: A court may extend probation, even in the absence of evidence of a violation, if it finds that the purposes of the probation are not being served.

(Filing Date: 12-07-2011)

State v. Magel

Criminal Law: To establish first-degree rape by threat of forcible compulsion, the threat must be an express communication of the intent to harm the other person. Additionally, the surrounding circumstances to establish forcible compulsion by threat varies according to the respective parties’ ages and prior history.

(Filing Date: 12-07-2011)

Baggarley v. Union Pacific Railroad Company

Employment Law: When a claimant became aware of his or her work-related injury is a question of fact for the jury to decide in determining the statute of limitations period on a workplace injury claim.

(Filing Date: 11-23-2011)

Cruze v. Hudler

Tort Law: A predicate conviction is not a prerequisite to a civil ORICO claim based on racketeering activities. To have a cause of action under ORICO, plaintiff only need demonstrate defendants violation is based on racketeering activity.

(Filing Date: 11-23-2011)

Gordon v. Board of Parole

Parole and Post-Prison Supervision: Under ORS 144.125(3), a parole board may rely on any information contained in the psychological report to find the four elements required to defer release of an offender.

(Filing Date: 11-23-2011)

State v. Ayvazov

Criminal Procedure: Where suspicious activity occurs, and it is objectively reasonable that the passenger of a car was recently involved in a crime, the police met its burden to show probable cause when arresting the passenger.

(Filing Date: 11-23-2011)

State v. Smith

Indian Law: According to Warm Springs Tribal Reservation law (WSTC 310.120), nontribal officers may arrest tribe members on tribal land following a traffic infraction in the officer's presence and leading to a "hot pursuit" onto the reservation.

(Filing Date: 11-23-2011)

State v. Volynets-Vasylchenko

Evidence: Medical treatment recommendations that convey the medical expert's implicit conclusions that a child victim's reports of sexual abuse are credible are inadmissible unless corroborated by physical evidence.

(Filing Date: 11-23-2011)

Svidenko v. DMV

Administrative Law: When a petitioner files a just cause exception to a timely administrative appeal, the reviewing agency must answer the substantive arguments put forth by the petitioner.

(Filing Date: 11-23-2011)

Fisher v. Walker

Property Law: To determine an easement’s purpose, the court looks to the wording of the document within the context of the document. An instrument creating an easement that does not convey title to the property, but only subjects it to the uses of the easement, is not a conveyable interest in land.

(Filing Date: 11-16-2011)

State v. Earls

Sentencing: For the purpose of applying the presumptive 13-month sentence under ORS 137.717(b) a conviction in a court-martial does not apply. Where the Court of Appeal finds plain error in the trial court’s failure to merge guilty verdicts on particular counts, the Court will exercise its discretion to correct the error.

(Filing Date: 11-16-2011)

Beauchaton v. Employment Dept.

Employment Law: When an employee leaves for their own safety due to a reasonable belief they are being stalked, then they are not disqualified for voluntarily quitting their job without “good cause.”

(Filing Date: 11-09-2011)

Dinicola v. State

Employment Law: Employees may be exempt from overtime compensation under the Fair Labor Standards Act depending on the nature of their work, and the classification of their job.

(Filing Date: 11-09-2011)

Housing Authority of Jackson County v. Gates

Contract Law: Where a written lease specifically refers to another writing as being part of the entire agreement, that other writing is part of the lease agreement.

(Filing Date: 11-09-2011)

Leif and Leif

Family Law: Including income from an inheritance in the calculation of gross income is appropriate when the inheritance is available. Also, averaging a parent's income over several years is appropriate when the income varies from year to year.

(Filing Date: 11-09-2011)

Oregon Corrections Employees v. State of Oregon

Employment Law: Where a collective bargaining agreement authorizes an employer to take certain actions, such actions if unilaterally employed by the employer, do not constitute unfair labor practices.

(Filing Date: 11-09-2011)

Rodenbeck and Rodenbeck

Family Law: In a marriage dissolution, it is not just and proper to reduce the value of a spouse’s share of a marital asset to reflect the taxes the other spouse may owe on the income he or she uses to pay the spouse. Also, a court should not rely on an expert’s value that is based on a guess from a non-expert.

(Filing Date: 11-09-2011)

Siegert v. Crook County

Land Use: The standard of review for a zoning ordinance is limited to whether the county’s determination is plausible. If the local government plausibly interprets its own regulations that interpretation must be affirmed, unless it is inconsistent with all of the express language or inconsistent with the policies underlying the regulation.

(Filing Date: 11-09-2011)

State v. Hennagir

Criminal Law: Under ORS 161.405(1), a reasonable jury can infer the intent to complete a crime when substantial steps have been taken toward completion, even when there is no evidence of the actual objective.

(Filing Date: 11-09-2011)

State v. Jones

Criminal Law: OEC 404(4) bars a trial court from excluding evidence under OEC 403,“unless constitutionally required.”

(Filing Date: 11-09-2011)

State v. M.W.H.

Juvenile Law: Warrantless searches may be justified if there is reasonable suspicion and exigent circumstances.

(Filing Date: 11-09-2011)

State v. Rayburn

Criminal Procedure: Police may use the totality of the circumstances to establish probable cause to arrest a passenger in a stolen car. This assessment establishes the requisite mental state of the passenger to determine whether or not they knew they were in a stolen vehicle and could be arrested.

(Filing Date: 11-09-2011)

State v. Ulizzi

Criminal Procedure: Even when information that led to the issuance of a warrant is "stale," a court will give deference to the issuing court and uphold a warrant that may yield potential evidence.

(Filing Date: 11-09-2011)

State v. Young

Criminal Law: An appellate or post-conviction court may add court appointed attorney fees to a defendant's appeal following a claim for post-conviction relief.

(Filing Date: 11-09-2011)

Weyerhaeuser Real Estate Develop. v. Polk County

Land Use: Land use decisions made by proper county officials and in accord with statutory and case law of the time shall be upheld despite conflicting previous acts related to the land in question.

(Filing Date: 11-09-2011)

Dept. of Human Services v. N.S.

Family Law: A court will not reverse a juvenile court's order of reunification to guardianship, despite a parent's participation in DHS services, when the parent places the child in harm's way.

(Filing Date: 11-02-2011)

SAIF v. Hanscram

Workers Compensation: The "date of injury" occurs on the date when a claimant becomes disabled or seeks treatment for a compensable condition. A condition becomes compensable when the claimant's work is the major contributing cause of the injury.

(Filing Date: 11-02-2011)

State v. Chase

Sentencing: A sentence does not violate the proportionality principle of the Oregon Constitution if the defendant would not have received the base sentence for the more serious crime based on his criminal history.

(Filing Date: 11-02-2011)

State v. Condon

Criminal Procedure: The 90-day timeline established by Oregon's criminal restitution statute may be extended for good cause.

(Filing Date: 11-02-2011)

State v. Landreth

Criminal Procedure: Good cause to extend the deadline for the imposition of a supplemental judgment exists when the motion is filed within the time period, and further investigation to establish the specific amount of restitution is required.

(Filing Date: 11-02-2011)

State v. Martinez

Criminal Procedure: Delay in a motion requesting an amended judgment for restitution meets the “good cause” requirement if it is not due to neglect, inadvertence, or inattentiveness. Awaiting information from a victim's compensation program does constitute "good cause".

(Filing Date: 11-02-2011)

State v. Newman

Evidence: Driving under the influence of intoxicants is a strict liability offense, and evidence of mental state will be excluded.

(Filing Date: 11-02-2011)

State v. Unis

Criminal Procedure: The 90-day timeline established by Oregon's criminal restitution statute may be extended for good cause.

(Filing Date: 11-02-2011)

State v. White

Appellate Procedure: Appeals from supplemental judgments, like other judgments, must be timely for the Court of Appeals to maintain jurisdiction.

(Filing Date: 11-02-2011)

Tieu v. Morgan

Property Law: Summary judgment of adverse possession will be granted where a claimant can prove, with clear and convincing evidence, that he, through “honest belief” of actual ownership, continuously maintained actual, open, notorious, exclusive and hostile possession of the property for greater than ten years.

(Filing Date: 11-02-2011)

C and K Market, Inc. v. Roccasalva

Property Law: If a landlord accepts payment on a lease, despite prior default on payment, the lease is not terminated for default, as the acceptance of payment stands opposed to the landlord's intention to terminate the lease.

(Filing Date: 10-26-2011)

Department of Human Services v. N.M.S

Family Law: When a substantial right of a parent is affected by a change in facts, such as those extrinsic to the court's jurisdiction, the parent must be given constitutionally adequate notice as to what, exactly, he or she must do to prevent or terminate jurisdiction of the state.

(Filing Date: 10-26-2011)

Dept. of Human Services v. D.S.F.

Family Law: Under ORS 419B.100(1)(c), custody of a child may not be taken away from a parent unless the parent's conduct is reasonably likely to threaten the welfare of the child.

(Filing Date: 10-26-2011)

Dubray v. SAIF Corp.

Workers Compensation: A final order that upholds the termination of the claimant’s eligibility for vocational training must be based on substantial reason, thus showing when the claimant received the warning and that the warning was written.

(Filing Date: 10-26-2011)

Matar and Harake

Family Law: A stipulated dissolution judgment preventing the parties from seeking modification of child support payments is enforceable, if the surrounding circumstances do not violate public policy.

(Filing Date: 10-26-2011)

Nordbye v. BRCP/GM Ellington

Property Law: The right of third-party beneficiary of a covenant to enforce the covenant may not be abrogated without his or her consent. Also, a state agency's interpretation of a federal statute will not be given deference if it is not a federal agency and Congress's intent is clear on the issue.

(Filing Date: 10-26-2011)

State v. Jones

Criminal Law: Multiple convictions for reckless endangerment will not be merged when a court finds that more than one person was within the zone of danger at the time of the offense.

(Filing Date: 10-26-2011)

State v. Minow

Criminal Law: A defendant commits the crime of attempting to drive while intoxicated if he or she attempts to get into the driver's seat of a vehicle, even if a third party is in the process of intervening.

(Filing Date: 10-26-2011)

State v. Neff

Criminal Law: Where two parties are recording the same conversation, when one party informs the other of the recording, it is sufficient to satisfy the notice requirement that the conversation is being obtained.

(Filing Date: 10-26-2011)

State v. Northcutt

Criminal Law: A “compelling” atmosphere exists when officers create a police dominated environment. The factors of a “compelling” atmosphere include: 1) the location; 2) length; 3) whether the officers confronted and pressured the defendant; and 4) the defendant’s ability to terminate the encounter.

(Filing Date: 10-26-2011)

State v. Olsen

Criminal Procedure: An expert witness' testimony, erroneously admitted, will not be deemed a harmless error when that testimony is used to bolster the complainant's credibility and the case hinges on that credibility determination.

(Filing Date: 10-26-2011)

State v. Smith

Criminal Law: When a prosecutor makes the decision to aggregate multiple theft offenses into a single charge, the burden is on the defendant to show that the prosecutor's aggregation system lacks sufficient criteria, or that those criteria are not consistently applied.

(Filing Date: 10-26-2011)

Department of Human Services v. L.B.

Family Law: A court must carefully evaluate DHS’s decision to change a permanency plan for a child in order to ensure that the decision is one that is most likely to lead to a positive outcome for the child.

(Filing Date: 10-19-2011)

Dept. of Human Services v. G. E.

Juvenile Law: The Court of Appeals is bound by any findings of fact of a juvenile court that are supported by current evidence.

(Filing Date: 10-19-2011)

Ross Day v. Elections Division of the Secretary of State

Administrative Law: Hearsay evidence may be admitted and considered in an administrative proceeding when it is reliable and substantial.

(Filing Date: 10-19-2011)

Snyder v. Interstate Distributor Co.

Workers Compensation: An employer may demonstrate a claimant's lack of diligence by showing that the claimant failed to request a timely hearing to review a claim denial, and the claimant’s lack of diligence cannot be shown by inaction prior to the injury.

(Filing Date: 10-19-2011)

State v. Banks

Appellate Procedure: If a defendant does not preserve an error of law at the trial court, the appellate court may exercise its discretion in correcting the error.

(Filing Date: 10-19-2011)

State v. Braukman

Criminal Procedure: To determine whether an officer had reasonable suspicion that a person is under the influence, the court takes into account the officer’s experience and whether the officer found specific, articulable, facts that could raise a reasonable suspicion that the defendant may be under the influence of intoxicants.

(Filing Date: 10-19-2011)

State v. Coleman

Appellate Procedure: An order denying a motion to correct an amended judgment under ORS 183.083 is not appealable where the appealed issue is not defined as appealable.

(Filing Date: 10-19-2011)

State v. Keller

Criminal Law: Contempt for willful disobedience of a court order will be established when the defendant was aware of such an order, and neither complied, nor sought modification, of the order.

(Filing Date: 10-19-2011)

State v. Nelson

Evidence: Under the Confrontation Clause of Article I, section 11, if evidence exists that a victim made prior false accusations, the defendant may cross examine the complaining witness, unless the risk of prejudice, confusion, or embarrassment substantially outweigh the cross-examination.

(Filing Date: 10-19-2011)

State v. Paul William Schneider

Criminal Law: Unless the lease agreement specifies otherwise, a tenant has authority to invite guests to the common area of the property; even if the guest has been issued a written “notice of exclusions” by the property management, which would ordinarily make the guest liable for trespass.

(Filing Date: 10-19-2011)

State v. Reynolds

Criminal Law: In order for a court to find intent to defraud, a person must have a conscious objective to use deception to take property.

(Filing Date: 10-19-2011)

Young v. State

Employment Law: Barring contractual provisions to the contrary, only simple interest will be awarded on a judgment. Further, interest does not qualify as “wages” for purposes of ORS 652.150.

(Filing Date: 10-19-2011)

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

Evidence: A child’s out-of-court statements in a dependency case are admissible as statements of a party opponent.

(Filing Date: 10-12-2011)

Russell v. U.S. Bank National Association

Employment Law: Under ORS 652.150, the statue of limitations for penalty wages does not begin to run until the employer pays the employee’s final wages, files an action, or after 30 days from date final wages are due.

(Filing Date: 10-12-2011)

Sheptow v. Geico General Ins. Co.

Insurance Law: Person Injury Protection coverage in an insurance policy applies to any person who uses the insured’s vehicle with consent.

(Filing Date: 10-12-2011)

State v. Pickett

Evidence: Where there is plain error in admitting an expert’s diagnosis of sexual abuse in the absence of physical signs of abuse, the court may decline to exercise its discretion to correct the error when the admission did not likely affect the lower court’s verdict.

(Filing Date: 10-12-2011)

Towe v. Sacagewea, Inc.

Tort Law: Recovery under a negligence theory is not available for a trespasser where the trespasser knew he was trespassing; the owner of the land had not acted with reckless disregard for the safety of others and a willingness to inflict injury; and the trespasser was not following the rules of the road.

(Filing Date: 10-12-2011)

State v. Bell

Criminal Law: Merger of separate verdicts into one conviction is not appropriate if the record shows that the defendant had a chance to renounce his or her criminal intent after each violation.

(Filing Date: 10-05-2011)

State v. Washington

Constitutional Law: Prosecutorial discretion violates the Oregon Constitution when such decisions are made without coherent systematic policy or criteria, or when there exists a lack of consistent enforcement.

(Filing Date: 10-05-2011)

Fadel v. El-Togby

Elder Law: When a party transfers property from an estate to an estranged spouse in the midst of a divorce proceeding to avoid paying creditors, whether or not the divorce is a sham is inconsequential; and such property transfers are fraudulent if the transferor had any intent to defraud any creditor by avoiding an obligation to pay.

(Filing Date: 09-28-2011)

Friends of Polk County v. Oliver

Land Use: In order for a person to have vested rights to develop land under Measure 49 section 5(3), a determination of the nature of the ultimate project and an assessment of the expenditure ratio must be made.

(Filing Date: 09-28-2011)

Oregon Firearms v. Board of Higher Education

Administrative Law: Regulation of activities involving firearms is the sole domain of the state legislature, unless it expressly authorizes otherwise.

(Filing Date: 09-28-2011)

Pewther v. C Corp

Contract Law: The presumption of joint liability between co-owners in property presupposes that the co-owners maintain a joint tenancy, not a tenancy in common; and obligations will not be assumed to continue when it would be implausible under the terms of the contract following a termination of the tenant’s interest.

(Filing Date: 09-28-2011)

State v. Mullen

Criminal Law: A person whose identity is misappropriated is a victim for purposes of identity theft under ORS 161.067(2).

(Filing Date: 09-28-2011)

State v. Supanchick

Evidence: The forfeiture exclusion to the hearsay doctrine does not require a defendant to intend that his wrongful act prevent a witness from testifying; evidence otherwise excludable as prejudicial, may be admitted on cross examination if relied upon by defendant’s expert witness; and testimony by expert witnesses must be in regards to a relevant issue.

(Filing Date: 09-28-2011)

Campbell v. Employment Department

Employment Law: A finding that an employee lacked good cause to voluntarily leave a job will not be sustained when the evidence indicates the claimant constantly refused to hide financial improprieties and could reasonably expect a charge of insubordination and termination.

(Filing Date: 09-21-2011)

Homestyle Direct, LLC v. Department of Human Services

Administrative Law: An agency cannot enforce its own improperly promulgated standards by putting them in a provider agreement and then enforcing a rule that allows sanctions for noncompliance with that agreement.

(Filing Date: 09-21-2011)

Hood v. Employment Dept.

Employment Law: In order to receive unemployment benefits, an employee fired for misconduct must fall either under a good faith error exception, or a refusal to follow an unreasonable employer policy exception.

(Filing Date: 09-21-2011)

Klutschkowski v. Peacehealth

Tort Law: The noneconomic damage limitation of ORS 31.710 is not precluded by the remedy clause of Article I, section 10, nor the jury trial provisions of Article I, section 17, and Article VII, section 3 of the Oregon Constitution when the cause of action did not exist at the time the Oregon Constitution was adopted.

(Filing Date: 09-21-2011)

Maurer v. Maurer

Family Law: “Best interest” child custody cases will be analyzed using the factors in ORS 107.137 and the applicable public policy preferences.

(Filing Date: 09-21-2011)

State of Oregon v. M.J.

Civil Commitment: Homelessness and delusionally-driven dietary habits that occur when the person is willing to eat and able to obtain food, are not sufficient grounds for a basic needs commitment.

(Filing Date: 09-21-2011)

State v. Bryant

Criminal Law: When two assaults occur within a short period of time, and the assaults are so similar and interrelated that the facts of one crime will also relate details of the other crime, then the assaults are considered to arise out of the same criminal episode when calculating a criminal history score.

(Filing Date: 09-21-2011)

State v. Dunning

Criminal Law: A police officer should be prohibited from testifying as an expert regarding technical or scientific matters if he has no expertise or formal training on the subject.

(Filing Date: 09-21-2011)

State v. Martino

Criminal Procedure: The argument that a defendant’s failure to object to an erroneous ruling was waived because it was a strategic choice to have the court believe that the defendant was remorseful is not plausible.

(Filing Date: 09-21-2011)

State v. Mullins

Criminal Procedure: The 30 days that a defendant has to file a notice of appeal from a supplemental judgment begins when the defendant receives notice that the judgment has been entered, not when appellate counsel receives notice.

(Filing Date: 09-21-2011)

State v. Singer

Constitutional Law: A person has been seized under Article I, section 9 of the Oregon Constitution if a reasonable person, under the totality of the circumstances, would believe that his or her freedom of movement has been restricted by a law enforcement officer.

(Filing Date: 09-21-2011)

State v. Vidal

Evidence: An expert diagnosis of child sexual abuse is not admissible as evidence in the absence of other physical evidence of abuse.

(Filing Date: 09-21-2011)

State v. Zaccone

Constitutional Law: A defendant is seized for the purposes of Article I, section 9 of the Oregon constitution when a reasonable person similarly situated would believe that their freedom of movement is significantly restricted by a police officer’s show of authority.

(Filing Date: 09-21-2011)

Clement v. Mills

Post-Conviction Relief: A post-conviction settlement agreement that affects petitioner’s sentences in two separate cases will be enforced when the defendant agrees to the settlement agreement on the record, even though the defendant claimed there was no “meeting of the minds” when he misunderstood the agreement at the hearing.

(Filing Date: 09-08-2011)

Green v. Douglas County

Land Use: Oregon law defines buildings as not being strictly confined to walled structures, but rather as being “normally associated with uses permitted in the zone in which the property is located.”

(Filing Date: 09-08-2011)

Holbert and Noon

Family Abuse Prevention Act: For a restraining order, the imminence requirement of abuse is met when the threatened injury is part of the respondent’s pattern of threatening behavior and articulated to be near at hand, impending or menacingly near.

(Filing Date: 09-08-2011)

Hubbell v. Sanders

Civil Law: To establish a restraining order under the Family Abuse and Prevention Act (FAA), a person must have sufficient evidence, subjectively or objectively, but evidence of future abuse and credible threat to physical safety must be present.

(Filing Date: 09-08-2011)

Luty v. Luty

Family Law: When a spouse’s reduction in income is caused by an indefinite suspension of his/her medical license because of a substance abuse disorder, the circumstances justify the court’s reconsideration of spousal support obligations under ORS 107.135.

(Filing Date: 09-08-2011)

Proctor v. City of Portland

Tax Law: Despite the 2008 revisions to Portland’s Business License Law, real estate brokers working under principal real estate brokers are not required to pay a portion of their income as a licensing fee.

(Filing Date: 09-08-2011)

Rivera-Martinez v. Vu

Attorney Fees: To make a claim for attorney fees resulting from a minimum wage claim, the prevailing party must show that the claim clearly stems from clearly designed exceptions under ORS 653.055.

(Filing Date: 09-08-2011)

River’s Edge Investments, LLC v. Bend

Contract Law: A development agreement with provisions addressing exactions and system development charges (SDC) will interpret the nature of those SDC’s in the context of the agreement and not necessarily find they are exactions in the context of the agreement, unlike relevant case law.

(Filing Date: 09-08-2011)

State v. D. M.

Civil Law: In the absence of clear and convincing evidence that because of a mental disorder a person’s life is threatened by their inability to secure basic self-care, probable homelessness and the mere possibility of life-threateningly cold weather do not provide sufficient basis for civil commitment where there is no reason to believe that the individual would not seek shelter.

(Filing Date: 09-08-2011)

State v. Drown

Criminal Law: For the purposes of ORS 163.205, a person is guilty of first-degree criminal mistreatment when the person withholds necessary physical care to a person who is dependent upon them.

(Filing Date: 09-08-2011)

State v. Dudley

Criminal Law: A seizure of a person occurs if a law enforcement officer “intentionally and significantly” restricts that person’s movement or if a reasonable person based on the “totality of the circumstances” would believe their movement was restricted.

(Filing Date: 09-08-2011)

State v. Ko

Criminal Law: To violate a stalking protective order, statements made to protected persons must constitute unequivocal threats; and in order to prove a choice-of-evils defense, the defendant must prove that his conduct did not exceed what was necessary to avoid the purported evil.

(Filing Date: 09-08-2011)

State v. Martinez-Alvarez

Criminal Procedure: An officer is not required to obtain a warrant prior to administering a breath or blood test, unless an objectively reasonable officer would know that a warrant could be issued significantly faster than the time elapsed between probable cause and administration of the breath or blood test at the time the officer had probable cause.

(Filing Date: 09-08-2011)

State v. Wilson

Criminal Law: Where a defendant seeks relief under Ailes v. Portland Meadows, Inc., he need not preserve the error in the record when he was not afforded the opportunity to do so.

(Filing Date: 09-08-2011)

Williams v. Salem Women’s Clinic

Attorney Fees: If a party pursues a claim that is entirely devoid of legal or factual support, ORS 20.105(1) requires an attorney fee award; the factors specified in ORS 20.075 do not apply when a party seeks a mandatory attorney fee award.

(Filing Date: 09-08-2011)

Central Oregon Landwatch v. Deschutes County

Land Use: An Oregon county ordinance that authorizes including multi-tract sites of 160 acres or more on the county’s Destination Resort Eligible Lands Map does not conflict with ORS 197.455.

(Filing Date: 08-31-2011)

Drury v. Assisted Living Concepts, Inc.

Contract Law: Children will not be contractually bound by arbitration provisions in contracts to which their parents are third-party beneficiaries if the parent in question did not assent to the provision because of lack of capacity, and the parent’s actions do not bind him or her to the agreement.

(Filing Date: 08-31-2011)

Ferguson v. PeaceHealth

Appellate Procedure: A sanction for contempt may not be appealed from until a final judgment has been entered.

(Filing Date: 08-31-2011)

Marolla v. DPST

Administrative Law: ORS 181.662(4) grants the Department of Public Safety Standards and Training the option to implement a standard rule revoking suspension of an officer's basic police certification when the officer has been discharged for cause.

(Filing Date: 08-31-2011)

Porter v. Griffin

Family Law: In a suit for marital dissolution, the court may enforce the terms set forth in a stipulated judgment signed by the parties as a contract.

(Filing Date: 08-31-2011)

Portland Fire Fighters’ Assoc. v. City of Portland

Employment Law: The Employment Relations Board must examine the Collective Bargaining Agreement before determining that the city is in violation of ORS 243.698 for declining to bargain over the impact employment changes might have.

(Filing Date: 08-31-2011)

State v. B.A.H.

Criminal Law: Evidence found during a warrantless search is permissible when the search is made pursuant to the administrative policy of a school and there is reasonable suspicion of criminal activity.

(Filing Date: 08-31-2011)

State v. Fernandez

Criminal Law: The natural and probable consequence jury instruction may prejudice the jury, if the jury could infer without determining intent that one action was the natural and probable consequence of another action.

(Filing Date: 08-31-2011)

State v. Grierson

Criminal Law: A letter from the district attorney’s office advising defendant of an arraignment date does not satisfy the commencement of prosecution for statute of limitation purposes under ORS 131.135.

(Filing Date: 08-31-2011)

State v. Jones

Criminal Procedure: An officer requesting identification is not enough to amount to a stop because a reasonable person would not perceive it as a show of authority; so long as a reasonable suspicion of criminal activity begins before a stop does, it is legal.

(Filing Date: 08-31-2011)

State v. Rowland

Evidence: Under OEC (609)(3)(a), if more than 15 years pass since the prior conviction date, but jail time was served as a sanction for a parole violation within the 15-year period, the sanction is ‘confinement’ for purposes of calculating the 15-year period.

(Filing Date: 08-31-2011)

State v. Sullivan

Civil Procedure: Administrative agencies lack jurisdiction to make judgments on matters that are pending on appeal in court.

(Filing Date: 08-31-2011)

Stewart v. Kids Incorporated of Dallas, OR

Civil Procedure: To survive a motion to dismiss, a negligence claim must allege facts from which a factfinder could determine: 1) defendant caused a foreseeable risk of harm, 2) of the type the law protects, 3) defendant’s conduct was unreasonable in light of the risk and the cause of plaintiff’s harm, and 5) plaintiff was of the class of persons sought to be protected.

(Filing Date: 08-31-2011)

State v. McAtee

Criminal Law: Under Galloway v. U.S., if the ultimate fact may be logically proven following a fact or narrative, the jury may be given the opportunity to draw that conclusion.

(Filing Date: 08-24-2011)

Certain Underwriters v. Mass. Bonding and Ins. Co.

Attorney Fees: Under ORS 742.061 an insurer may receive contribution for contribution attorney fees if the insured prevails at trial and obtains a recovery that exceeds the insurer’s highest tender.

(Filing Date: 08-17-2011)

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

Family Law: To terminate parental rights, DHS must present clear and convincing evidence that a parent’s conduct or condition is seriously detrimental to the child; and a judgment terminating parental rights cannot be supported by evidence regarding the condition without evidence regarding detriment.

(Filing Date: 08-17-2011)

Gemstone Builders, Inc. v. Stutz

Contract Law: Even though the text of a contract was ambiguous as whether binding arbitration was required. The intent of parties could still be ascertained based on the policy goal of arbitration.

(Filing Date: 08-17-2011)

Greenway v. Parlanti

Property Law: ORS 90.396(1) requires an eviction notice to specify the date and time of the termination of tenancy; a notice that merely indicates that the termination date and time will occur 24 hours after service is insufficient.

(Filing Date: 08-17-2011)

Roseburg Forest Products v. Lund

Workers Compensation: Under Columbia Forest Products v. Woolner, there is no specific procedure for an employer to accept a combined condition.

(Filing Date: 08-17-2011)

State v. Durham

Criminal Law: Possession of less than one ounce of marijuana within 1000 feet of a school constitutes two separate offenses and thus is not eligible for a marijuana diversion program.

(Filing Date: 08-17-2011)

State v. Phillips

Evidence: When evaluating the relevance of evidence to show bias of a witness, reasonable inferences are permissible but speculation is not.

(Filing Date: 08-17-2011)

State v. Pipkin

Criminal Law: A concurrence jury instruction is required when determining which crime a defendant is guilty of, but it is not required when determining which particular acts a defendant perpetrated to constitute an element of a single crime.

(Filing Date: 08-17-2011)

State v. Simpson

Criminal Procedure: An unnamed informant’s report may be sufficient to justify an officer’s reasonable suspicion to stop a vehicle if the informant’s report is sufficiently detailed, and the officer can corroborate at least some of the information contained in the report.

(Filing Date: 08-17-2011)

State v. Wiggins

Criminal Procedure: The ‘automobile exception’ to the warrant requirement of Article I, section 9, of the Oregon Constitution applies as long as the vehicle in question is functionally mobile, even if law enforcement officers have broken contact with the vehicle.

(Filing Date: 08-17-2011)

State v. Wiseman

Criminal Procedure: When determining whether an officer has an objective reasonable suspicion that a crime is in progress, the facts must be viewed in the totality of the circumstances and consideration must be given to the officer’s experience and training.

(Filing Date: 08-17-2011)

Stave v. Diaz-Guillen

Sentencing: Where a trial court ran erroneous sentences concurrently with other lawful sentences, such errors are harmless and not grave; therefore there is no requirement to remand the case for resentencing.

(Filing Date: 08-17-2011)

Warkentin v. Employment Dept.

Employment Law: In order for an employee to quit with good cause and collect unemployment insurance benefits, an employee must have left employment under circumstances that a reasonable person would believe they had no reasonable alternative to leaving their job and such findings be the EAB must be supported by substantial evidence.

(Filing Date: 08-17-2011)

Willamette Oaks, LLC v. City of Eugene

Administrative Law: A petitioner must meet his burden to establish a prima facie case that the appeal violated a statute in order to make a fee challenge.

(Filing Date: 08-17-2011)

State v. Potter

Criminal Procedure: When questioning a defendant about a case other than that which the defendant has invoked the right to counsel for, the prosecutor must contact the defendant’s attorney before attempting to interview the defendant on a factually related matter.

(Filing Date: 08-10-2011)

State v. Wedel

Civil Procedure: The admission of evidence of a diagnosis of child sexual abuse in the absence of physical evidence is plain error.

(Filing Date: 08-10-2011)

Wallace v. State ex rel PERB

Administrative Law: Plaintiffs must first exhaust their administrative remedies before seeking judicial relief.

(Filing Date: 08-10-2011)

State v. Benson

Criminal Procedure: It is plain error when the court, in the presence of the jury, asks whether a defendant understands his right to silence, because OEC 513(2) requires that proceedings, where practical, be kept outside the knowledge of the jury.

(Filing Date: 10-26-2010)

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