Oregon Court of Appeals

Opinions Filed in February 2015

Hagberg v. Coursey

To prove ineffective assistance of counsel, a criminal defendant must show that counsel failed to bring an argument based on law that existed at the time of trial, and it is not sufficient to show that the argument would later be deemed meritorious.

Area(s) of Law:
  • Post-Conviction Relief

Hickey v. Hickey

The historical statutory context of ORS 60.952 is that it was enacted to reflect judicial practice and that practice has been to avoid penalizing controlling shareholders’ ownership interests in a manner that significantly departing from what was required to relieve minority shareholders from the oppressive conduct; and also to avoid increasing any value or benefit from a minority shareholders’ interest beyond what minority shareholders could reasonably expect or the fair value of the shares.

Area(s) of Law:
  • Corporations

Hostetler and Hostetler

ORS 107.105(1)(f) establishes a rebuttable presumption that spouses have contributed equally to marital property and asks the court to make just and proper property divisions in light of that presumption. ORCP 68 (C)(4)(g) states that a trial court is required to make attorney fee award findings only when a party makes a written request for them.

Area(s) of Law:
  • Family Law

Htaike v. Sein

If there is no statutory basis to bring an action to recover usurious interests paid, equitable relief may be available.

Area(s) of Law:
  • Civil Procedure

JRP Construction Enterprises, Inc. v. Department of Consumer Business Services

Director's dismissal of ALJ decision for attorneys’ fees concerning litigating the insurance pre-authorization under ORS 656.704(2)(a) was improper because the use of moot was ambiguous in this context and the issue concerning attorney’s fees must be reconsidered.

Area(s) of Law:
  • Workers Compensation

Providence Health System v. Walker

Whether a board's action is reasonable depends on the underlying facts and, based on those facts, whether the conclusion the board made constitutes an error of law.

Area(s) of Law:
  • Workers Compensation

State v. Beck

A trial court does not err when it denies a motion to suppress if the then admitted statements are harmless.

Area(s) of Law:
  • Criminal Procedure

State v. Chandler

Arguments not preserved in the trial court, and not accompanied by a request for plain-error review, will not be considered for the first time on appeal.

Area(s) of Law:
  • Appellate Procedure

State v. English

A person who is aware of, and consciously disregards, a substantial and unjustifiable risk that an injury will occur acts recklessly, not knowingly.

Area(s) of Law:
  • Criminal Law

State v. Hernandez

Evidence as to whether a witness has a personal interest in a case is relevant, and failure to admit such evidence may not be harmless error if the jury is not fully informed of the facts necessary to assess the credibility of that witness.

Area(s) of Law:
  • Evidence

Stoeckert v. Nooth

Under ORS 138.580 and Ogle v. Nooth, 355 Or. 570 (2014), in order to receive a hearing, a petitioner for post-conviction relief need only show prima facie evidence “sufficient to submit the case to the factfinder” that, if true, would permit the court to rule in favor of the petitioner.

Area(s) of Law:
  • Post-Conviction Relief

WSB Investment, LLC v. Pronghorn Development Company, LLC

Under ORS 65.369(1), gross negligence or intentional misconduct must be shown to hold a defendant nonprofit director liable for any breach of fiduciary duty under ORS 65.357(1). Summary judgment may be avoided in cases where breach of the statutory duty of loyalty is shown by a violation of duties contained in the declaration and bylaws of a homeowners association.

Area(s) of Law:
  • Corporations

A.M.M. v. Hoeffer

A Petitioner to meet the burden of proof for a permanent stalking protective order (SPO), petitioner must tie their fear and alarm to an apprehension regarding personal safety.

Area(s) of Law:
  • Civil Stalking Protective Order

Lenn v. Baldwin

Jury instructions which are correct statements of law and not likely to create an erroneous impression in the minds of jurors are not grounds to remand.

Area(s) of Law:
  • Appellate Procedure

Oakleigh-McClure Neighbors v. City of Eugene

Notice of intent to appeal is effectively filed, for purposes of determining the timeliness of a motion to intervene under ORS 197.830(7) by a person required under OAR 661-010-0015(2) to be served with the notice, on the date of that service.

Area(s) of Law:
  • Land Use

State v. Korth

To show that a criminal defendant had knowledge, the evidence must show beyond a reasonable doubt that he had knowledge of the particular crime for which he is charged.

Area(s) of Law:
  • Criminal Procedure

State v. Kuschnick

Even if officers lawfully extended a stop to investigate the passenger’s involvement in another crime, once that investigation end and the officers are prepared to give defendant his citation, the officers violated Article I, section 9, when they do not issue the citation and instead continued to seize defendant without justification.

Area(s) of Law:
  • Constitutional Law

State v. Patterson

When a court revokes probation on a felony conviction the court is not imposing sentencing on the original conviction, but rather is it sanctioning the defendant for having violated the condition of his or her probation.

Area(s) of Law:
  • Sentencing

5 Star, Inc. v. Atlantic Casualty Ins. Co.

Under ORS 701.105(2003), in order to show unlawful contract reformation, a plaintiff must show that a new insurer agreed to the terms of a former insurance policy to be bound by that former policy. To prove negligent procurement of insurance, a plaintiff must show that defendant insurance agent was an agent of the particular insurer under ORS 744.078(4).

Area(s) of Law:
  • Insurance Law

In the Matter of the Marriage of Morgan and Morgan

OAR 137-050-0715(7)(b)(2012) states that in making a child support determination, a parent with a "verified disability" will have their income calculated as their actual income rather than their "presumed" income.

Area(s) of Law:
  • Family Law

Johnson v. Jones

The intent requirement to incur liability for a battery claim is met when a defendant transmits a sexually transmitted infection which they are aware of, but do not disclose their diagnosis to their sexual partner.

Area(s) of Law:
  • Tort Law

Leonard v. Moran Foods

On review of a grant of summary judgment, the court's review is limited to the record that exists at the time of the court's ruling on the motions for summary judgment.

Area(s) of Law:
  • Civil Procedure

State of Oregon v. Marsh & McLennan Companies, Inc.

ORS 59.135 does not possess a rebuttable presumption component concerning fraud in reliance, nor is there a federal preemption problem concerning the dormant Commerce Clause because Oregon law does not require those elements as proof.

Area(s) of Law:
  • Constitutional Law

State v. Antoine

As long as the State’s election of criminal acts it was prosecuting at trial does not introduce a new theory, element, or crime it is permissible.

Area(s) of Law:
  • Criminal Procedure

State v. Islam

Awarding restitution for stolen property is adequate when the theft occurs in retail space.

Area(s) of Law:
  • Criminal Law

State v. Mercer

The rule for initiative measures requires that a proposed law or amendment to the Constitution shall embrace one subject only and matters properly connected therewith.

Area(s) of Law:
  • Criminal Procedure

State v. Starr

Admissible hearsay statements do not violate the state constitution’s Confrontation Clause if the declarant is available and the statements have adequate indicia of reliability.

Area(s) of Law:
  • Evidence

State v. Tegland

Where erecting a structure in a public space is illegal and the person has been so informed and told that the structure must be removed, there is no reasonable expectation of privacy associated with the space.

Area(s) of Law:
  • Criminal Procedure

Steel Capital Steel, LLC v. Williams

Under ORCP 26 A, a court must allow a reasonable time for the substitution of a real party in interest once the objection has been raised. The denial of an ORCP 71 B motion may not be considered on appeal unless a new or amended notice of appeal is filed, where a party received a general judgment, filed an ORCP 71 B motion for relief, filed a notice of appeal of the general judgment, and the ORCP 71 B motion was denied.

Area(s) of Law:
  • Civil Procedure

Taylor v. Portland Adventist Medical Center

ORS 19.250(2) does not apply where a trial court judge determines to let a subsequent trial proceed following a mistrial in the same matter. The trial court judge is not making a judgment nor does the trial court's order “'effectively determine[] the action so as to prevent a judgment in the action.' It merely allows for another trial,” thus making a denial to a motion for dismissal unappealable.

Area(s) of Law:
  • Appellate Procedure

Zielinski v. State of Oregon

There is a rebuttable presumption that the elements of the doctrine of laches have been sufficiently proven, and therefore apply, when an analogous statute of limitations for an action at law has been exceeded.

Area(s) of Law:
  • Civil Procedure

Arms v. SAIF

To properly analyze a claim, the court must first determine whether a claimant has a compensable injury and whether he sought medical services for a condition that was “caused in material part by” that injury. If it was, the court is to consider whether any of the limitations identified in ORS 656.245(1)(a) apply — namely, the limitations set out in ORS 656.225 and the limitations for consequential or combined conditions.

Area(s) of Law:
  • Workers Compensation

Cox v. Howton

In order for a post-conviction court to grant relief due to inadequate counsel, it must be shown that the attorney’s error was the but-for cause of the client’s decision.

Area(s) of Law:
  • Criminal Procedure

Deardorff v. Farnsworth

Estoppel cannot be used to negate an express exclusion in an insurance policy, unless it is through interpretation of an ambiguous provision.

Area(s) of Law:
  • Insurance Law

Lake Oswego Preservation Society v. City of Lake Oswego

Under ORS 197.772(3), a successor in interest to property imposed with a historic designation may remove that designation, even if the particular owner was not the owner at the time of the designation. LUBA has jurisdiction to hear appeals regarding removal of historic designations.

Area(s) of Law:
  • Land Use

Real v. Nooth

In determining whether a sentence is disproportionate under Article I, section 16, of the Oregon Constitution, the Court considers three factors: a comparison of the severity of the penalty and the gravity of the crime; a comparison of the penalties imposed for other, related crimes; and the criminal history of defendant.

Area(s) of Law:
  • Criminal Law

State v. J.L.S.

Conviction under ORS 162.375 must be supported by evidence that defendant initiated a false report, rather than mere evidence that a defendant initiated a process that later resulted in that person giving false information about a true incident to police.

Area(s) of Law:
  • Juvenile Law

State v. Larson

When determining whether to set aside a conviction under ORS 137.225, a court may only consider the circumstances and behavior manifested by a criminal defendant's conduct for the 10-year period after conviction.

Area(s) of Law:
  • Post-Conviction Relief

State v. Nascimento

Under ORS 164.377(4), “Without authorization” applies to a machine limited to one function, and authorization given to use such machine for that one function, which does not constitute general authorization to use the machine for other functions outside of what was indicated.

Area(s) of Law:
  • Criminal Law

State v. Nguyen

When determining whether a father has access to resources outside of his regular income, the court must make findings based on facts supported by evidence in the record and not merely on the testimony of the mother.

Area(s) of Law:
  • Family Law

State v. Reed

The proponent of scientific evidence must demonstrate that the proposed evidence is based on scientifically valid principles and that it is pertinent to the issue to which it is directed

Area(s) of Law:
  • Evidence

State v. Soto

Under ORS 138.050(1), a Defendant may not appeal an imposition of fines and fees for DUII within the statutorily allowable amount where the trial court misunderstood the law with respect to its discretion to reduce or waive some of the fees.

Area(s) of Law:
  • Criminal Law

State v. Tucker

Under ORS 137.225, the second public indecency (or similar) conviction, which amounts to a “sex crime” as defined in ORS 181.805, is ineligible to be set aside.

Area(s) of Law:
  • Criminal Law

State v. Wheeler

Under both ORS 151.505(3) and 161.665(4), a court may not order a convicted criminal defendant to pay his court-appointed attorney fees, unless the defendant can or may be able to pay them.

Area(s) of Law:
  • Sentencing

Washington v. Board of Parole

Under the parole matrix system, the Board of Parole and Post-Prison Supervision has statutory authority to determine whether those prison terms would be served consecutively or concurrently, and may revisit or recalculate earlier opinions.

Area(s) of Law:
  • Sentencing

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