Oregon Court of Appeals

Opinions Filed in April 2015

Gibson v. Morris

The Court of Appeals will not overturn a trial court's finding of fact regarding what a party knew or should have known unless, as a matter of law, there is only a single possible conclusion on the evidence and the trial court did not reach it.

Area(s) of Law:
  • Tort Law

Hendrickson Trucking, Inc. v. ODOT

Under OAR 137-003-0528, if an issue of fact is in dispute, ODOT must provide a hearing to determine whether good cause exists for a late petition for reassessment of road-use taxes.

Area(s) of Law:
  • Administrative Law

Murphy v. Oregon Medical Board

Petitioner was not given adequate notice of the allegations against him when the complaint failed to specify which specific part of the statute the board alleged he violated. Petitioner was prejudiced when the board based its final order on two theories not argued at the contested case hearing.

Area(s) of Law:
  • Administrative Law

State v. Clink

The protections of Article I, sec. 9 of the Oregon Constitution against unreasonable seizures can be overcome by an officer's reasonable suspicion based on the totality of the circumstances.

Area(s) of Law:
  • Criminal Procedure

State v. G. A. K.

Evidence was insufficient to support involuntary commitment where the State failed to prove by clear and convincing evidence that appellant was unable to provide for her basic needs due to a mental disorder.

Area(s) of Law:
  • Civil Commitment

State v. Heyne / Yunke

In providing a search warrant, a reasonable magistrate may believe that marijuana and marijuana-related items will be found at a defendant’s residence when the defendant lists the residence on an expired medical-marijuana card after he is pulled over and found to possess a large amount of marijuana without proof of a current medical-marijuana card.

Area(s) of Law:
  • Evidence

Ajir v. Buell

Under ORS 278.215(2), a self-insured public body is obligated to provide the UM/UIM coverage according to ORS 742.500 to ORS 742.504 unless there is a signed, written election that lowers the limit.

Area(s) of Law:
  • Insurance Law

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

Under ORS 419B.504, when a parent is addicted to drugs and that drug abuse is deemed to be seriously detrimental to the child, the result of continued use of drugs (even those when prescribed by doctors if obtained by “doctor shopping”) can be enough to lead a court to conclude that the conditions will not be changed in a reasonable period of time. This is especially true when the parent is considered by professionals to be in denial of their drug addiction.

Area(s) of Law:
  • Juvenile Law

Dept. of Human Services v. R.S.

Under ORS 419.476(2)(a), in order to permit a child to return to a parent's home from foster care, a juvenile court must determine that a parent has made "reasonable efforts" and "sufficient progress" in creating a safe environment for the child.

Area(s) of Law:
  • Juvenile Law

Dunn v. City of Milwaukie

Under Oregon's Discovery Rule and ORS 30.275, the timeline to file a claim begins as soon as a harm is cognizable, and is not tolled to the date that the full extent of the harm is recognized.

Area(s) of Law:
  • Tort Law

Gustafson v. Board of Accountancy

Under ORS 183.650, the Board of Accountancy has the authority to modify an ALJ’s proposed order if those modifications are adequately explained.

Area(s) of Law:
  • Administrative Law

Hicks v. Central Point School District

Under ORS 279B.033, the required estimate of a potential contractor’s personnel costs is mandatory.

Area(s) of Law:
  • Municipal Law

Hinchman v. UC Market, LLC

Where a party’s theory is susceptible to proof through expert opinion evidence based on appropriate facts, a party’s offer of an ORCP 47 E affidavit is sufficient to create a genuine issue of fact to defeat summary judgment.

Area(s) of Law:
  • Civil Procedure

State v. Black

Under ORS 161.067, where one act satisfies more than one element of a single crime, a defendant’s single criminal act cannot be converted into multiple crimes.

Area(s) of Law:
  • Criminal Law

State v. Burris

Under ORS 161.067--the Anti-Merger statute, guilty verdicts do not merge if the same conduct violates two or more statutory provisions and each provision requires proof of an element the other does not.

Area(s) of Law:
  • Criminal Law

State v. Freih

Under ORS 161.200, in order for a defendant to raise the affirmative defense of "choice-of-evils" against a charge of failure to appear in court, the defendant must be under threat of imminent psychological harm on the date (or shortly after) the defendant failed to appear.

Area(s) of Law:
  • Criminal Law

State v. Ibabao

Under ORS 163.225, the asportation element of second degree kidnapping is not satisfied when the victim's movements are incidental to another crime or when moving a victim between rooms in a house, because their starting and ending locations are not qualitatively different.

Area(s) of Law:
  • Criminal Law

State v. Munoz

In a murder trial, a defendant is not prejudiced by a trial court’s failure to provide a concurrence instruction when two alternative factual ways of proving the “causes” element of the crime exist.

Area(s) of Law:
  • Criminal Procedure

State v. Norton

Article I, Section 9, of the Oregon Constitution protects individuals from incriminating evidence when the individual initiates the contact with the officer and the conversation morphs into a seizure, even when that evidence is given with consent.

Area(s) of Law:
  • Criminal Procedure

State v. Sherman

Constructive possession of a controlled substance occurs when the defendant exercises control, or has the right to exercise control, over the substance. However, merely being proximately close to the substance does not indicate constructive possession. Evidence needs to be established connecting defendant to his right to control the substance and that evidence can be circumstantial, including defendant's own statements.

Area(s) of Law:
  • Criminal Law

Gonzalez v. Standard Tools and Equipment Co.

Oregon does not recognize the product line liability exception to the general rule of successor liability.

Area(s) of Law:
  • Tort Law

Smith v. Psychiatric Security Review Board

OAR 859-050-0010 was a validly adopted administrative rule under the guiding statutes ORS 183.413 and ORS 161.346 because the rule included a non-exhaustive, incomplete list of prehearing notice requirements that did not exclude other items that may be required under other statutes.

Area(s) of Law:
  • Administrative Law

State v. Dickens

To establish an affirmative defense to a charge of manufacturing marijuana under ORS 465.856(1), a defendant must provide some evidence to the three specific requirements of ORS 475.319(1). Analysis of the evidence provided is to be highly deferential to the defendant.

Area(s) of Law:
  • Evidence

State v. Larrance

Under ORS 138.083, the trial court abused its discretion when it failed to amend an entire sentence which had been determined using an erroneous understanding of the law.

Area(s) of Law:
  • Sentencing

State v. Maack

Under ORS 137.540(2), a trial court “may impose any special conditions of probation that are reasonably related to the crime of conviction” to facilitate the probationer’s rehabilitation or for public safety. A probation condition is valid as long as it restricts a probationer's behavior “to a permissible degree” as it reasonably relates to the purposes of probation, even if an alternate, narrower version of the condition could be imposed.

Area(s) of Law:
  • Criminal Law

State v. Martinez

Under ORS 137.123(5)(a), a trial court may impose consecutive sentences for attempted aggravated murder and the aggravating crime if it can be shown that the aggravating crime was not just an incidental crime but rather an indication of a defendant’s willingness to commit more than one criminal offense.

Area(s) of Law:
  • Criminal Law

State v. Streeter

Revised statute ORS 181.812(1)(d), failure of sex offender to report a new residence within 10 days, does not require the State to prove either the exact moment the 10 days lapses or the exact location of the defendant at that time, as was required under former statute ORS 181.599(1)(d).

Area(s) of Law:
  • Criminal Law

Teegarden v. State of Oregon

A settlement agreement barring a party from filing any further actions against another party does not preclude an action for intentional torts when the settlement agreement was induced with a material misrepresentation.

Area(s) of Law:
  • Contract Law

Turner v. Dept. of Transportation

Under the Oregon Tort Claims Act, the two-year statute of limitations may not begin to run until a plaintiff reasonably knows both that the governmental conduct caused harm and that the conduct was negligent or intentionally harmful. Under ORS 30.265(6)(c), governmental immunity applies only where a body or person that has responsibility or authority to exercise judgment over a public policy decision actually demonstrates that it took the action necessary to effectuate the decision, not merely weighs the costs and benefits.

Area(s) of Law:
  • Tort Law

Dept. of Human Services v. E.L.G.

A no-contact order between incestuous parents in a juvenile dependency case may only prohibit sexual contact under ORS 163.525, rather than no-contact whatsoever.

Area(s) of Law:
  • Family Law

Dept. of Human Services v. M. U. L.

State v. Geist, does not allow for inadequate assistance of counsel to be raised for the first time on appeal in this scenario because T. L. held that ORS 419B.923 provides other remedies to challenge the adequacy of dependency counsel.

Area(s) of Law:
  • Juvenile Law

Harkness v. Platten

In determining the likelihood of success in the case underlying a malpractice case: a principal (Mortgage Brokerage) is not vicariously liable for the acts of their agent for acting with apparent authority by giving financial advice and brokering hard-money loans because the principal did not take an affirmative step giving that agent the appearance of such authority solely by giving the title of "loan officer" to the agent.

Area(s) of Law:
  • Tort Law

Smith v. Providence Health and Services - Oregon

In order to survive a motion of dismissal for failure to state a claim, some semblance of a claim must be presented. A loss of chance claim fails on that notion because it cannot establish that defendant's conduct was the likely cause of plaintiff's injuries, and because Oregon does not recognize loss of chance as a cognizable theory of relief at common law.

Area(s) of Law:
  • Civil Law

State v. Driver

It is a violation of the right of a criminal defendant to have a speedy trial where the State itself delayed a trial for twenty months by not providing discovery.

Area(s) of Law:
  • Criminal Procedure

State v. Jones

In order to preserve error defendant must give the judge an opportunity to adequately explain reasoning for a ruling.

Area(s) of Law:
  • Appellate Procedure

State v. Logston

A defendant who immediately objects to the prosecutor’s argument, but whose objection is overruled, need not engage in futile efforts to obtain a curative instruction or a mistrial.

Area(s) of Law:
  • Criminal Law

State v. Luxford

Under ORS 163.275, by forcing the victim to relinquish car keys that she had a legal interest in, defendant compelled the victim to engage in conduct from which she had a legal right to abstain.

Area(s) of Law:
  • Criminal Law

State v. Pergande

It is plain error for a trial court not to strike testimony of a witness that is an explicit comment on the credibility of another witness.

Area(s) of Law:
  • Criminal Procedure

State v. Quigley

In order to prevail on an argument that evidence would have been inevitably discovered, the State must show that the officer would have sought defendant’s consent to search and that she would have consented, even without an unlawful extension of the stop.

Area(s) of Law:
  • Criminal Procedure

State v. Stewart

Under the Oregon Constitution, Article VII, section 3, an appellate court is required to affirm a conviction, even if an evidentiary error occurred, if there is little possibility that the error negatively impacted the verdict. The evidence in question needs to be weighed as to whether it is “merely cumulative” or “qualitatively different” from other evidence presented in the case that led to the conviction.

Area(s) of Law:
  • Criminal Procedure

Couch Investments, LLC v. Peverieri

An arbitrator does not exceed its authority under ORS 36.695(3) to order "just and appropriate" remedies when the arbitration agreement fails to lay out express award guidelines.

Area(s) of Law:
  • Arbitration

Jeld Wen, Inc. v. Cooper

Employer dismissed employees claim for workers compensation without sufficient evidence to support employers claim that the current condition of the injury could not be used as evidence to assess the original injury.

Area(s) of Law:
  • Workers Compensation

Landye Bennett Blumstein, LLP v. Jeffrey S. Mutnick, PC

A partnership agreement should be analyzed for clear language, and if ambiguous, extrinsic evidence can be employed.

Area(s) of Law:
  • Contract Law

Logan v. Logan

The trial court has discretion to determine the amount and duration of spousal support that will be just and equitable. The Court of Appeals will not disturb that discretionary determination unless there was a misapplication of law under ORS 107.105.

Area(s) of Law:
  • Family Law

Ooten v. Clackamas Cnty.

Under OAR 660-004-0018(2)(c), the word “and” is used conjunctively, meaning that all requirements of the rule would need to be satisfied to establish whether proposed amendment and zone changes would require a new exception to Statewide Planning Goals 3 & 4.

Area(s) of Law:
  • Land Use

State v. Del Real-Gavez

When the State’s argument depended on witness credibility, the jury should hear evidence of “motive to fabricate a disclosure against defendant,” by that witness.

Area(s) of Law:
  • Evidence

State v. Hunt

Under ORS 163.670(1), “permits” means “allows” or “makes possible” and does not require an authority to forbid. True vouching testimony supplants the jury’s assessment of credibility, requiring the court to sua sponte strike the testimony.

Area(s) of Law:
  • Criminal Law

State v. Kreft

Speech does not qualify as the kind of “behavior” necessary to satisfy the elements of ORS 166.025(1)(a) and the statute only encompasses acts of physical violence. Asking someone for the time is not aggressive enough to be deemed behavior that would be likely to produce the use of physical force by an objectively reasonable person under this statute.

Area(s) of Law:
  • Criminal Law

State v. Thomas

When the court allows the State to improperly admit a "vouching" statement it is harmless error if the statement may actually bolster the defense's theory of the case.

Area(s) of Law:
  • Evidence

Stave v. Bailey

When a victim satisfies the first condition under OEC 803(18a)(b) – testifying and being subject to cross-examination – whether she was “unavailable” is irrelevant to admissibility of her out-of-court statements.

Area(s) of Law:
  • Evidence

Back to Top