Oregon Court of Appeals

Opinions Filed in April 2018

Kutz v. Lee

When bringing an action under the Oregon Tort Claims Act, “No action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 to 30.300 shall be maintained unless notice of claims is given as required by this section. For claims other than wrongful death, the notice period is 180 days. An action arising from any act or omission of a public body or an officer, employee, or agent of a public body within the scope of OTCA shall be commenced within two years after alleged loss or injury." ORS 30.275(1), (2)(b), (9).

Area(s) of Law:
  • Land Use

Robles v. SAIF

Under ORS 183.482(a) and (c), a court may affirm, reverse, or remand orders if it finds that the agency erroneously interpreted the provision, or set aside orders that do not have substantial evidence supporting the finding of fact.

Area(s) of Law:
  • Workers Compensation

State v. Krieger

“When the trial court has excluded testimony, the proponent of the disputed evidence must make an offer of proof. State v. Affeld, 307 Or 125, 128, 764 P2d 220 (1988). . .Error is not always sufficient to warrant reversal. We will affirm a judgment of conviction notwithstanding the erroneous admission or exclusion of evidence if there is little likelihood that the error affected the verdict. State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003).”

Area(s) of Law:
  • Evidence

State v. Murga

“Because punitive contempt is quasi-criminal in nature, an accusatory instrument is required. ORS 33.065(4), (5); see State v. Hauskins, 251 Or. App. 34, 39, 281 P.3d 669, 673 (2012). An accusatory instrument is a ‘grand jury indictment, an information or a complaint.’”

Area(s) of Law:
  • Criminal Law

Engweiler v. Board of Parole

The United States Supreme Court's explicit statement prevails: “entitlement, if any, to eventual release will be to parole.” State v. Turner, 235 Or App 462, 466, 234 P.3d 993 (2010).

Area(s) of Law:
  • Sentencing

Metje/Parks v. PERS

“ORS 238.715(2) provides that recovery could be made by civil action or ‘other proceeding.’ The statute does not define ‘other proceeding,’ but an administrative proceeding plainly qualifies as an ‘other proceeding.’” Metje/Parks v. PERS, 291 Or. App. 338, 346 (2018).

Area(s) of Law:
  • Civil Procedure

Meyers v. SAIF

Under ORS 656.005(30), a "'worker' means any person who engages to furnish services for a remuneration, subject to the direction and control of an employer[.]"

Area(s) of Law:
  • Workers Compensation

Molette v. Nooth

Under ORS 137.719, adjudications that are not defined as sentences do not count as sentences for the purposes of imposing life imprisonment on defendants with at least two prior felony sentences for sex crimes.

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

Nesbit v. Bd. of Lic. Pro. Counselors and Therapists

In deciding whether a subject is proper for summary determination, “a discretionary sanction is not a proper subject for summary determination, because whether an agency should impose a particular sanction is not a question of law.” King v. Dept. of Public Safety Standards, 289 Or App 314, 412 P3d 1183 (2017).

Area(s) of Law:
  • Administrative Law

O’Hara v. Premo

“To prevail on a post-conviction claim of inadequate assistance of counsel, the burden is on the petitioner to show, by a preponderance of the evidence, facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment and that the petitioner suffered prejudice as a result.” Lambert v. Palmateer, 182 Or App 130, 135, 47 P3d 907 (2002), adh’d to as modified on recons, 187 Or App 528, 69 P3d 725, rev den, 336 Or 125 (2003).

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

Payne v. Kersten

The granting of summary judgment based on issue preclusion happens only when, “it can be conclusively determined from the record that all of the requirements for issue preclusion are satisfied.” See Johnson & Lechman-Su, P.C., 272 Or App at 246.

Area(s) of Law:
  • Civil Law

Robin v. Teacher Standards and Practices Comm.

Under ORS 183.650(2) and the implementing rule, OAR 137-003-0665(3), an agency must “identify the modifications and provide an explanation to the parties to the hearing as to why the agency made the modifications” if the agency “modifies the form of order issued” or “changes the outcome or the basis for the order”.

Area(s) of Law:
  • Administrative Law

SAIF v. Massari

An injury occurs in the course of employment if it takes place during a period of employment, at a place where the worker reasonably may be expected to be, and while the worker is fulfilling duties of the employment or doing something reasonably incidental to the employment. Fred Meyer, Inc. v. Hayes, 325 Or 592, 598, 943 P2d 197 (1997).

Area(s) of Law:
  • Workers Compensation

Shicor v. Board of Speech Language Path. and Aud.

It is “well established that due process does not require a formal separation of the investigative functions from the adjudicative or decision-making functions of an administrative agency, nor does it preclude those who perform the latter from participating in the investigative phase.” Fritz v. OSP, 30 Or App 1117, 1121, 569 P2d 654 (1977) (citing Withrow v. Larkin, 421 US 35, 95 S Ct 1456, 43 L Ed 2d 712 (1975)).

Area(s) of Law:
  • Administrative Law

State v. Bush

“To ensure that a person’s waiver is knowing and voluntary, article 1, section 12 of the Oregon Constitution requires that the police inform a person subjected to custodial interrogation that he has a right to remain silent . . . and any statements the person makes may be used against the person in a criminal prosecution.” State v. Vondehn, 348 Or. 462, 474, 236 P.3d 691, 699 (2010).

Area(s) of Law:
  • Criminal Procedure

State v. O’Dell

The officer-safety exception to the warrant requirement applies when officers face an “objectively reasonable threat.” State v. Kennedy, 284 Or App 268, 272-73, 392 P3d 382 (2017). “To be objectively reasonable, the state must prove that ‘the officer’s safety concerns [are] based on facts specific to the particular person searched, not on intuition or a generalized fear that the person may pose a threat to the officer’s safety.” State v. Smith, 277 Or App 298, 303, 373 P3d 1089, rev den, 360 Or 401 (2016).

Area(s) of Law:
  • Criminal Procedure

C.I.C.S. Employment Services v. Newport Newspapers

Under ORS 31.152(1), "Oregon’s anti-SLAAP statutes requires a defendant to file a special motion to strike within 60 days from service of the complaint, although the trial court may exercise its discretion to permit a late filing." See ORS 31.152(1).

Area(s) of Law:
  • Administrative Law

Melissa Louise Stephens v. Rob Persson, Coffee Creek Correctional Facility

In order to establish that counsel provided inadequate counsel for purposes of Article I, section 11, one must prove two elements: (1) a performance element: that trial counsel “failed to exercise reasonable professional skill and judgment”; and (2) a prejudice element: that “petitioner suffered prejudice as a result of counsel’s inadequacy.” Johnson v. Premo, 361 Or 688, 699, 399 P3d 431 (2017).

Area(s) of Law:
  • Criminal Law

Rush v. Corvallis School Dist. 509J

“A public body that owes a particular duty of care (such as that owed by a school district to its students who are required to be on school premises during school hours) has wide policy discretion in choosing the means by which to carry out that duty.” Mosley v. Portland School Dist. No. 1J, 315 Or. 85, 92, 843 P.2d 415, 419 (1992).

Area(s) of Law:
  • Tort Law

State v. Apodaca

“Evidence of a defendant’s prior bad act that otherwise would be inadmissible under OEC 404(3) may be admissible under that rule for the non-character purpose of impeaching the defendant’s testimony” State v. Grey, 175 Or App 235, 250, 28 P3d 1195 (2001), rev den, 333 Or 463 (2002).

Area(s) of Law:
  • Evidence

State v. Mendoza-Lopez

Preservation is required to ensure that party positions are clearly presented and “it will turn on whether, given the particular record of a case, the court concludes that the policies underlying the rule have been sufficiently served.” State v. Parkins, 346 Or 333 (2009).

Area(s) of Law:
  • Criminal Law

State v. Mendoza-Sanchez

Excluding expert testimony that relates to facts presented that would raise doubt to the central issue in the case is not harmless error.

Area(s) of Law:
  • Evidence

State v S. F.

Under ORS 426.130(1)(a), "in order to justify an involuntary commitment, the state must prove, by clear and convincing evidence, that the individual is 'a person with mental illness.'"

Area(s) of Law:
  • Civil Commitment

Dept. of Human Services v. J. J. B.

When a juvenile court wants to establish jurisdiction over a child they must show “sufficient evidence” and “establish a nexus” related to the “conditions or circumstances that endanger the [child’s] welfare.” ORS 419B.100(1)(c). Dept. of Human Services v. A. W., 276 Or App 276, 278, 367 P3d 556 (2016). Dept. of Human Services v. C.J.T., 258 or App 57, 62, 308 P3d 307 (2013).

Area(s) of Law:
  • Juvenile Law

Dept. of Human Services v. S.A.B.O

To endanger the child's welfare, the circumstances must create a current threat of serious loss or injury to the child and there must be a reasonable likelihood that the threat will be realized." Dept. of Human Services v. S. P., 249 Or. App. 76, 84, 275 P.3d 979, 984 (2012).

Area(s) of Law:
  • Juvenile Law

Dixon v. Board of Nursing

The standard of proof set in ORS 183.450(5) is synonymous with the preponderance of evidence standard. Therefore, the standard of proof in agency proceedings is the preponderance of the evidence standard.

Area(s) of Law:
  • Administrative Law

Gordon v. State Mortuary and Cemetery Board

“[W]hen a court’s decision or ruling is premised on alternative grounds, a party challenging that ruling generally must take issue with all independent and alternative grounds on which it is based to obtain relief.” Cf. Strawn v. Farmers Ins. Co., 350 Or 336, 366, 258 P3d 1199, adh’d to on recons, 350 Or 521, 256 P3d 100 (2011).

Area(s) of Law:
  • Appellate Procedure

Kiltow v. SAIF

"A worker cannot be both ‘permanently’ and ‘temporarily’ disabled at the same time.” Gwynn v. SAIF, 304 Or 345, 351, 745 P2d 775 (1987), and SAIF v. Grover, 152 Or App 476, 480, 954 P2d 820 (1998),

Area(s) of Law:
  • Workers Compensation

Klamath Tribute Center v. Mortuary and Cemetery Bd.

When courts are required to interpret federal regulation, a federal court looks to the plain meaning of the wording or the administrative interpretation, if neither are present, “the court considers such factors as the overall purpose of the governing statute, the overall purpose of the regulation, the history of the regulation, and the practical consequences of suggested interpretations to determine the intent of the enacting body.” Hagan v. Gemstate Manufacturing., Inc., 328 Or 535, 545, 982 P2d 1108 (1999).

Area(s) of Law:
  • Administrative Law

Service Employees International Union Local 503, Oregon Public Employees Union v. University of Oregon

“It is well settled that a public employer’s obligation to collectively bargain in good faith under ORS 243.672(1)(e) includes promptly providing and exlusive representative with requested information that has ‘some probable or potential relevance to a grievance or other contractual matter.’” Association of Oregon Corrections Employees v. State of Oregon, Department of Corrections, Case No. UP-7-98, 18 PECBR 64, 70 (1999).

Area(s) of Law:
  • Employment Law

South Valley Bank & Trust v. Colorado Dutch, LLC

Pursuant to ORS 18.165, “If a judgment with lien effect under ORS 18.150, 18.152 or 18.158 is entered or recorded in a county before a conveyance, or a memorandum of a conveyance, of real property of the debtor is recorded in that county, the conveyance of the judgment debtor’s interest is void as against the lien of the judgment unless: (a) The grantee under the conveyance is a purchaser in good faith for a valuable consideration . . .”

Area(s) of Law:
  • Property Law

State v. Aguirre - Lopez

Under Article I, Section 9 of the Oregon Constitution, law enforcement officer inquiries during a traffic stop must be reasonably related to the traffic stop and to the duration of the stop. State v. Dawson, 282 Or App 335, 386 P3d 165 (2016)

Area(s) of Law:
  • Criminal Procedure

State v. Davis

Out of court statements may be relevant, not for their truth, but to provide context, and therefore do not qualify as hearsay. State v. Chandler, 360 Or 323, 380 P3d 932 (2016).

Area(s) of Law:
  • Evidence

State v. G. V. L.

Under ORS 419B.100(1)(c), juvenile courts have jurisdiction over children “[w]hose condition or circumstances are such as to endanger the welfare of the child.”

Area(s) of Law:
  • Juvenile Law

State v. Horton

Under ORS 165.800(1), intent to defraud requires that a defendant act with specific intent which looks at a “conscious objective of causing the injury to another’s legal rights or interest."

Area(s) of Law:
  • Criminal Procedure

State v. Roberts

A trial court errs as a matter of law when it “fails to conduct OEC 403 balancing when requested to do so or if it fails to make a record that reflects that the court has conducted the requested OEC 403 balancing.” State v. Garcia-Rocio, 286 Or App 136 (2017).

Area(s) of Law:
  • Evidence

State v. Sawyer

For a trial court to show that it complied with Mayfield's OEC 403 balancing requirements, it must "(1) demonstrate that the court consciously conducted the required balancing and (2) allow for meaningful review of that balancing." Ydrogo, 289 Or App 488, 492 (2017).

Area(s) of Law:
  • Evidence

State v. Walker

“In determining whether a case presents a ‘proper occasion’ to give the instruction described in ORS 10.095(3), the court must ‘determine, from all the testimony, whether or not there has been sufficient evidence for the jury to decide that at least one witness consciously testified falsely.’” State v. Roman, 288 Or. App. 441, 445, 406 P.3d 1119, 1121-22 (2017).

Area(s) of Law:
  • Criminal Law

Tressel v. Williams

When interpreting an express easement, the court must “look first to the words of the easement, viewing them in the context of the entire document.” Kell v. Oppenlander, 154 Or App 422, 426, 961 P2d 861 (1998).

Area(s) of Law:
  • Property Law

Truong v. Premo

When a trial court’s exercise of discretion “flows from a mistaken legal premise, its decision may be legally impermissible because it was guided by the wrong substantive standard.” Lopez v. Nooth, 287 Or App 731, 734, 403 P3d 484 (2017).

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

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