Oregon Court of Appeals

Opinions Filed in February 2018

Berger v. State Farm Mutual Automobile Insurance Company

Under ORS 742.061(2), the assertion that medical services are not reasonable and necessary brings the dispute outside of the safe-harbor. Under ORS 742.061(3), subsequent pleadings will not forfeit safe-harbor protection.

Area(s) of Law:
  • Insurance Law

DLCD v. City of Klamath Falls

Under OAR 660-015-0000(14), change to an Urban Growth Boundary must be based on both (1) a need to accommodate 20-year long range population forecasts, and (2) a need for housing, employment opportunities, livability or uses such as public facilities, streets and roads, schools, parks, or open spaces.

Area(s) of Law:
  • Land Use

Kuralt v. SAIF

Under ORS 656.265, in order to survive a claim for worker compensation, a worker must have good cause for failing to submit a timely notice with a subjective belief which must be "induced by some actual occurrence which is susceptible to such an interpretation by him." Riddel v. Sears, Roebuck & Co., 8 Or App 438, 494 P2d 901 (1972).

Area(s) of Law:
  • Workers Compensation

Minor v. SAIF

Worker's Compensation Board orders are reviewed as provided in ORS 183.482(7) and (8). Courts review for substantial evidence, which "exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding." ORS 183.482(8)(c). In reviewing for substantial evidence, a court must also determine whether the board's analysis comports with substantial reason. To satisfy that requirement, the board must "provide a rational explanation of how its factual findings lead to the legal conclusions on which the order is based." Arms v. SAIF, 268 Or App 761, 767, 343 P3d 659 (2015).

Area(s) of Law:
  • Workers Compensation

State v. Cole

Under ORS 164.215(1), A person commits the crime of burglary in the second degree when a person "enters or remains unlawfully in a building with the intent to commit a crime therein." If the building is a dwelling, however, the crime is elevated from second-degree burglary to burglary in first degree. ORS 164.225(1).

Area(s) of Law:
  • Criminal Law

State v. Easley

A court must (1) “consciously conduct the required balancing” of the Mayfield test for admissibility of evidence; and (2) “allow for meaning review of that balancing.” State v. Ydrogo, 289 Or App 488, 492, ___ P3d ___ (2017) (emphasis omitted).

Area(s) of Law:
  • Evidence

State v. Moreno-Hernandez

Under ORS 151.505 and 161.665, a court can award attorney fees when there is objective, non-speculative evidence that Defendant has the ability to pay. State v. Pendergrapht, 251 Or App 630, 633, 284 P3d 573 (2012). The three prerequisites for compensatory fines under ORS 137.101(1): criminal activities; a victim who incurred objectively verifiable economic damages that the victim could recover in a civil action; and causal relationship between the two. State v. Alonso, 284 Or App 512, 516, 393 P3d 256 (2017).

Area(s) of Law:
  • Criminal Law

State v. Page

A charging instrument must show on its face that the requirements of ORS 132.560 have been met for a demur to be denied. State v. Poston, 277 Or App 137, 370 P3d 904 (2016).

Area(s) of Law:
  • Criminal Law

U.S. Bank National Assn. v. McCoy

The business records exception to hearsay under OEC 803(6) does not permit "a party to substitute testimony regarding the contents of records for the records themselves."

Area(s) of Law:
  • Evidence

Wingard v. Oregon Family Council, Inc.

Under ORS 31.150(3), a plaintiff must present “substantial evidence to support a prima facie case” to have an anti-SLAPP motion denied; this means that a plaintiff “must submit sufficient evidence from which a reasonable trier of fact could find that the plaintiff met its burden of production.” Handy v. Lane County, 360 Or 605, 385 P3d 1016 (2016).

Area(s) of Law:
  • Tort Law

Putnam v. Board of Parole

“The term of post-prison supervision, when added to the prison term, shall not exceed the statutory maximum sentence for the crime of conviction. When the total duration of any sentence (prison incarceration and post-prison supervision) exceeds the statutory maximum sentence, the sentencing judge shall reduce the duration of post-prison supervision to the extent necessary to conform the total sentence length to the statutory maximum.” Former OAR 253-05-002(4).

Area(s) of Law:
  • Parole and Post-Prison Supervision

State v. Beeman

A law prohibiting the actual possession of a firearm is legally valid under intermediate scrutiny so long as the law is “substantially related to an important governmental objective.” District of Columbia v. Heller, 554 US 570 (2008).

Area(s) of Law:
  • Constitutional Law

State v. Cowdrey

An officer's conduct during a traffic stop that extends "beyond that reasonably related to the traffic violation, must be justified on some basis other than the traffic violation." State v. Rodgers/Kirkeby, 347 Or 610, 623 (2010).

Area(s) of Law:
  • Criminal Procedure

State v. Cowdrey

An officer's conduct during a traffic stop that extends "beyond that reasonably related to the traffic violation, must be justified on some basis other than the traffic violation." State v. Rodgers/Kirkeby, 347 Or 610, 623 (2010).

Area(s) of Law:
  • Criminal Procedure

State v. Davis

A former judgment may be set aside and a new trial granted in an action where there has been a trial by jury on the motion of the party aggrieved for any of the following causes materially affecting the substantial rights of such party: (1) irregularity in the proceedings of the court, jury, or adverse party, or any other of the court, or abuse of discretion, by which such party was prevented from having a fair trial; (2) misconduct of the jury of prevailing party; and (4) newly discovered evidence, material for the party making the application, which such party could not with reasonable diligence have discovered and produced at trial. ORCP 64 B(1), B(2), and B(4).

Area(s) of Law:
  • Criminal Procedure

State v. Decker

A traffic stop extension requires reasonable suspicion of a specific crime or type of crime. State v. Maciel-Figueroa, 361 Or 163, 182, 389 P3d 1121 (2017).

Area(s) of Law:
  • Criminal Procedure

State v. Hedgpeth

Common knowledge that a person's blood alcohol content dissipates over time is, without additional evidence, is insufficient to prove that at a specific point in time, a person's alcohol level was above, below, or the same as it was later recorded to be. State v. Miller, 289 Or App 353, 359, P3d (2017).

Area(s) of Law:
  • Evidence
  • , Criminal Law

State v. Salsman

A trial court needs to conduct an OEC 403 evidence balancing test that fulfills the requirements of State v. Mayfield, 302 Or 631 (1987).

Area(s) of Law:
  • Evidence

Morgan v. Jackson County

ORS 215.130(5), “The lawful use of any building, structure or land at the time of the enactment or amendment of any zoning ordinance or regulation may be continued…” should not be read in conjunction with laws that are unrelated to zoning and land use.

Area(s) of Law:
  • Land Use

Sartin v. Taylor

In order to prevail on an inadequate trial assistance claim, the court will evaluate the actions and arguments available to the lawyer under those circumstances, and whether the attorney would have raised a particular argument in exercising their professional skill and judgment. Maney v. Angelozzi, 285 Or App 596 (2017). In order to prevail on an inadequate appellate assistance claim for an unpreserved argument, the defendant must show that (1) counsel would have raised the argument, (2) the result of the error would have probably been different, and (3) the error involving the facts in the case is irrefutable. Harbert v. Franke, 284 Or App 374, 378 (2017); State v. Reyes-Camarena, 330 Or 431, 435 (2000).

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

Simonsen v. Sandy River Auto, LLC

For purposes of the Unlawful Trade Practices Act, “ascertainable loss” is any loss capable of being discovered, observed or established, such that there is some inferred loss of the value of the bargain. Scott v. Western Intern. Surplus Sales, Inc., 267 Or 512, 516-17 (1973).

Area(s) of Law:
  • Tort Law

State v. Feyko

“Service of process or other legal documents upon the [protected person] is not a violation of this section if the [protected person] is served as provided in ORCP 7 or 9.” Or. Rev. Stat. § 107.718(12). “Service . . . upon a party shall be made by delivering a copy to that . . . party; by mailing it to the . . . party’s last known address[.]” Or. Rule Civ. Pro § 9B.

Area(s) of Law:
  • Family Abuse Prevention Act

State v. Flack

"In cases where a defendant has raised a defense of self-defense, a jury instruction regarding 'an officer's right to use force in effectuating an arrest' inserts 'an irrelevant issue—the arresting officers' actual state of mind—into the jury's deliberations concerning [the defendant's] claim of self-defense.'" State v. Flack, 290 Ore. App. 152, 156

Area(s) of Law:
  • Criminal Procedure

State v. Flack

: “[I]n cases where a defendant has raised a defense of self-defense, a jury instruction regarding ‘an officer’s right to use force . . . in effectuating an arrest’ inserts ‘an irrelevant issue—the arresting officers’ actual state of mind—into the jury’s deliberations concerning [the defendant’s] claim of self-defense.’” State v. Oliphant, 347 Or. 175, 194, 218 P.3d 1281 (2009). “[T]he burden of proof [is] on the state to disprove the existence of that defense beyond a reasonable doubt.” Oliphant, 347 Or. at 194.

Area(s) of Law:
  • Criminal Procedure

State v. Folks

Defendant must provide evidence of long-term mental disorder from chronic substance abuse to prove "mental disease or defect" under ORS 161.295 and ORS 161.300. Transitory, episodic, drug-induced psychosis is not a "mental disease or defect" under those statutes.

Area(s) of Law:
  • Criminal Law

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