Oregon Court of Appeals

2019

January 14 summaries

Cervantes v. Department of Human Services

“In the absence of such an agreement or concession [by the parties] summary judgment is not permissible if the party opposing summary judgment demonstrates that there are factual disputes going to the merits of the challenged agency decision.” Bridgeview Vineyards, Inc. v. State Land Board, 258 Or App 351 (2013).

Area(s) of Law:
  • Administrative Law

Morris v. Kanne

"Adverse possession depends on the intent of the occupant to claim and hold real property in opposition to all the world." Sertic v. Roberts, 171 Or 121, 134, 136 P2d 248 (1943).

Area(s) of Law:
  • Property Law

S. P. Z. v. Kirkwood

“Intimate partner is defined as a person to be ‘the person’s spouse, the person’s former spouse, a parent of the person’s child or another person who has cohabitated or is cohabitations with the person in a relationship akin to a spouse.’” ORS 166.255(3)(d).

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

State v. B.K.

“Whether the trial court committed plain error in failing to advise appellant of all the possible results of the proceedings depends on whether the error was one of law, whether the error was ‘apparent’ so that the legal point is obvious and not reasonably in dispute, and whether the error appears on the record so that we ‘need not go outside the record or choose between competing inferences to find it, and the facts that comprise the error are irrefutable.’” State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990).

Area(s) of Law:
  • Civil Commitment

State v. Gillispie

Interviews must immediately cease when a suspect invokes “the rights to remain silent and council.” State v. Boyd, 360 Or 302, 318, 380 P3d 941 (2016). If the interview continues after the suspect invokes the right to counsel, the interview is considered unlawful. State v. Schmidtke, 290 Or App 880, 884, 417 P3d 563 (2018).

Area(s) of Law:
  • Criminal Procedure

State v. R.J.C.

Under State v. E.A., to correct a judgment containing a scrivener’s error, the judgment should be vacated and remanded with regard to the basis for commitment. State v. E.A., 295 Or App  265 (2018).

Area(s) of Law:
  • Sentencing

State v. Roberts

ORS 163.205(1)(b)(D) was enacted as part of a broader amendment to the criminal mistreatment statute to address the problem of elder abuse—particularly the ‘abandonment and financial exploitation of elderly and dependent persons.’ State v. Bevil, 280 Or App 92, 376 P3d 294 (2016) (emphasis in original).

Area(s) of Law:
  • Criminal Law

T. G. W. v. B. J. V.

Under ORS 109.324, willful neglect looks at the failure of parent to maintain substantial expressions of concern which show that the parent has a "deliberate, intentional, and good faith interest in maintaining a parent-child relationship” with the relevant further inquiry being whether there is “just and sufficient cause” that excuses the parent’s neglect. Eder v. West, 312 Or 244 (1991). C. R. H. v. B. F., 343 Or 690 (2007).

Area(s) of Law:
  • Juvenile Law

Dept. of Human Services v. C. L. R.

“A juvenile court may assert dependency jurisdiction over a child whose ‘condition or circumstances are such as to endanger the welfare of the [child] or of others.’” ORS 419B.100(1)(c).

Area(s) of Law:
  • Juvenile Law

Emon Enterprises, LLC v. Kilcup

"In pursuing statutory remedies sequentially, as permitted by the statute, a landlord may pursue them ‘in a series,' ‘one right after the other often with small interviewing intervals.’” Webster’s Third New Int’l Dictionary 2071 (unabridged ed 2002).

State v. Rondeau

"Police conduct that is '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, 227 P3d 695 (2010).

Area(s) of Law:
  • Criminal Procedure

Willamette Oaks, LLC v. City of Eugene

Under ORAP 5.45(1) provides, in part, that “[n]o matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court” and must “demonstrate that the question or issue presented by the assignment of error timely and properly was raised and preserved in the lower court.” Barnes v. City of Hillsboro, 239 Or App 73, 81, 243 P3d 139 (2010).

Area(s) of Law:
  • Land Use

Bighorn Logging Corp. v. Truck Ins. Exchange

When a word or phrase is not defined in an insurance policy, the court will seek out plausible interpretations; should multiple plausible interpretations exist, "any reasonable doubt as to the meaning of the word or phrase will be resolved in favor of the insured and against the insurer." Hunters Ridge Condo. Assn. v. Sherwood Crossing, 285 Or App 416, 423, 395 P3d 892 (2017).

Area(s) of Law:
  • Insurance Law

Liberty Metal Fabricators v. Lynch Co.

“‘Reasonable medical probability’ describes the level of proof required to establish medical causation by a preponderance of the evidence. Robinson v. SAIF, 147 Or App 157, 160, 935 P2d 454 (1996).

Area(s) of Law:
  • Workers Compensation

February 26 summaries

Dept. of Human Servives v. M. M. R.

A court has the inherent authority to set aside a judgment for extrinsic fraud only, which “consists of acts not involved in the fact finder’s consideration of the merits of the case." Wimber v. Timpe, 109 Or App 139 (1991).

Area(s) of Law:
  • Juvenile Law

Kasner and Kasner

“ORS 107.452 authorizes ‘relief from a dissolution judgment for the fraudulent concealment of the true ownership of a significant asset belonging to the parties or either of them, even if the existence of the asset was known before the entry of judgment.’” Conrad and Conrad, 191 Or App 283, 292, 81 P3d 749 (2003).

Area(s) of Law:
  • Family Law

State v. Campbell

Under ORS 137.106(1)(a), "the court shall enter a judgment or supplemental judgment requiring that the defendant pay the victim restitution in a specific amount that equals the full amount of the victim's economic damages as determined by the court" upon a showing of evidence; and under ORS 31.710(2)(a), "economic damages" are the "objectively verifiable monetary losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services[.]"

Area(s) of Law:
  • Insurance Law

State v. Fulmer

“Property is ‘seized,’ for purposes of Article I, section 9, when there is a significant interference, even a temporary one, with a person’s possessory or ownership interests in the property.” State v. Juarez-Godinez, 326 Or 1, 6, 942 P2d 772 (1997).

Area(s) of Law:
  • Criminal Procedure

State v. Murillo-Bejar

Under OEC 403, "evidence of an expert's diagnosis of child sexual abuse is inadmissible . . . in the absence of physical evidence of abuse." State v. Southard, 347 Or 127, 218 P3d 104 (2009).

Area(s) of Law:
  • Criminal Procedure

State v. Walker

To determine whether a child was “unattended” in accordance with neglect the court must evaluate the totality of the circumstances, such as, “the age of the child, place where left, whether it was left alone in the company of others, period of time left and, finally, whether the sum of these circumstances are such as would endanger the health or welfare of the child.” Commentary to Criminal Law Revision Proposed Oregon Criminal Code, Final Draft and Report § 174, 176 (July 1997). Additionally, for there to be "reckless endangerment," the child must have been put in "possible or potential harm" and the defendant needs to have “only a conscious disregard of a substantial risk [of that] harm.” State v. Cervantes, 232 OR App 567, 582, 223 P3d 425 (2009) & State v. Harbert, 155 Or App 137, 141, 963 P2d 710, rev den, 327 Or 554 (1998).

Area(s) of Law:
  • Criminal Procedure

D. R. S. v. Baker

“An elderly person who has been the victim of abuse within the preceding 180 days may petition the circuit court for relief, if the person is in immediate and present danger of further abuse from the abuse.” ORS 124.010.

Area(s) of Law:
  • Elder Law

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

The risk of harm when establishing jurisdiction must be “present at the time of the hearing and not merely speculative” and “a person’s status as a sex offender does not alone justify state intervention, nor does the fact that a sex offender is untreated create a presumption of risk to the child.” Dept. of Human Services v. E.M., 264 Or App 76 (2014); Dept. of Human Services v. G.J.R., 254 Or App 436 (2013).

Area(s) of Law:
  • Juvenile Law

Geddry v. Richardson

“Proposed initiatives may be evaluated before an election to determine whether they are of the type authorized by the Oregon Constitution to be placed on the ballot but may not be evaluated for ‘general questions of constitutionality, such as whether the proposed measure, if enacted, would violate some completely different portion of the constitution.’” Foster v. Clark, 309 Or 464, 469-70 (1990).

Area(s) of Law:
  • Election Law

State v. Jacobson

Under the Oregon Constitution, Article I, section 11, "[i]n all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed; to be heard by himself and counsel."

Area(s) of Law:
  • Constitutional Law

State v. Rose

When determining whether a defendant has invoked his or her right to remain silent the court should view the “words that the defendant identifies as having amounted to an unequivocal invocation” and “view[] [them] in isolation before examin[ing] the context in which the statements were made.” State v. Nichols, 361 Or 101, 390 P3d 1001 (2017).

Area(s) of Law:
  • Criminal Procedure

Bice v. Oregon Board of Psychology

Remand is required "when an agency makes unidentified and unexplained changes to an order, including making additional factual findings, if those new findings change the basis of the order." See Robin v. Teacher Standards and Practices Comm., 291 Or App 379, 396-98, 421 P3d 385 (2018).

Area(s) of Law:
  • Administrative Law

City of Eugene v. Hejazi

In order for jurisdiction to be found, "the essential prerequisite of our jurisdiction under ORS 221.360 is that the appellant raise a cognizable facial or as-applied challenge to the constitutionality of an ordinance” that the appellant was convicted of violating. City of Lowell v. Wilson, 197 Or App 291, (2005).

Area(s) of Law:
  • Civil Procedure

King v. Warner Pacific College

Under ORS 659A.006(4), a religious organization or institution may prefer an employee or an applicant of one religious sect over another if the employment is closely related with the primary purpose of the institution and is not connected with a commercial or business activity.

Area(s) of Law:
  • Employment Law

State v. H. H. J.

"Under ORS 426.301(1), if the court finds that the person is still a person with mental illness and in need of further treatment, it 'may order commitment to the authority for an additional indefinite period of time up to 180 days,' otherwise the person must be released." State v. T. Z., 287 Or App 8 (2017).

Area(s) of Law:
  • Sentencing

State v. Keleman

“A probationer fails to ‘abide by the direction of the supervising officer’ within the meaning of that provision only when the officer’s direction relates to the requirement that the probationer ‘[r]eport as directed.’” State v. Harges, 294 Or App 445, 432 P3d 268 (2018).

Area(s) of Law:
  • Criminal Law

State v. Rhodes

When a trial court properly instructs the jury on the state’s burden to prove, beyond a reasonable doubt, all elements of the charged crime, including mental states, “any error in failing to give an instruction on the issue of partial responsibility is not prejudicial”. State v. Booth, 284 Or 615, 620 (1978).

Area(s) of Law:
  • Criminal Law

Hammond v. Liberty Northwest Ins. Corp.

“If a compensable injury combines with a preexisting disease or condition to cause or prolong disability or need for treatment, the resultant condition is compensable only to the extent that the compensable injury is and remains the major contributing cause of the disability or need for treatment.” ORS 656.005(7)(a)(B).

Area(s) of Law:
  • Insurance Law

Michaelson/NWDA v. City of Portland

The scope of LUBA’s review is to look at the whole record which is a direction “to evaluate the substantiality of supporting evidence by considering all the evidence in the record." ORS 197.835(9)(a)(C). Younger v. City of Portland, 305 Or 346 (1988).

Area(s) of Law:
  • Land Use

Patton v. Mutual of Enumclaw Ins. Co.

Issue preclusion bars a party from relitigating an identical issue in a new proceeding if that issue has already been decided in another proceeding. Nelson v. Emerald People’s Utility Dist., 318 Or 99, 104, 862 P2d 1293 (1993). Additionally, “a trial court awards prejudgment interest when ‘the exact amount is ascertainable or easily ascertainable . . . and where the time from which interest should run is also ascertainable.’” Strader v. Grane Mutual Ins. Co., 179 Or App 329, 338 (2002).

Area(s) of Law:
  • Civil Procedure

State v. Allen

“The defendant’s substantial step must be toward the crime that he intends personally to commit, not a crime that will be committed by someone else.” State v. Kimbrough, 364 Or 66, 84, 431 P3d 76 (2018).

Area(s) of Law:
  • Criminal Law

Western States Petroleum Assn. v. EQC

Under ORS 468A.266(5), in order to adopt a rule, the EQC must evaluate a handful of factors ranging from technical studies to feasibility analysis, and the rule will be invalid under ORS 183.400(4)(c) if it was adopted without compliance with applicable rulemaking procedures.

Area(s) of Law:
  • Administrative Law

Griffin v. Dish Network Services

Pursuant to ORS 656.266(2), “for the purpose of ‘combine condition’ injury claims under ORS 656.005(7)(a)(B) only: ‘(a) Once the worker establishes an otherwise compensable injury, the employer shall bear the burden of proof to establish the otherwise compensable injury is not, or is no longer, the major contributing cause of the combined condition or the major contributing cause of the need for treatment of the combined condition.’”

Area(s) of Law:
  • Workers Compensation

Hammond v. Hammond

Pursuant to the discovery rule, "the period of limitation commences either when a plaintiff actually discovers his or her injury or when a reasonable person exercising reasonable care should have discovered his or her injury.” Rice v. Rabb, 354 Or 721, 725, 320 P3d 554 (2014). “To establish adverse possession, a claimant must show by clear and convincing evidence that his or her use of the property—or that of a predecessor in interest—was “actual, open, notorious, exclusive, hostile, and continuous” for a period of 10 years, that the claimant had an “honest belief” that he or she was the actual owner of the property throughout the vesting period, and that that belief was objective and reasonable under the circumstances.” Case v. Burton, 250 Or App 14, 22-23, 279 P3d 259 (2012).

Area(s) of Law:
  • Property Law

Smith v. Central Point Pawn, LLC

When reviewing a trial court’s summary judgment ruling, courts review “the evidence in light most favorable to the nonmoving party, here plaintiff, to determine whether there is a genuine issue of material fact that precludes summary judgment. Rush v. Corvallis School District 509J, 291 Or App 252, 253, 419 P3d 746 (2018). There is no genuine issue of material fact if, “based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is subject of the motion for summary judgment. ORCP 47 C.

Area(s) of Law:
  • Civil Law

State v. Taylor

There are five factors, Jarnagin factors, that the courts apply in deciding "whether the breath test results [are] admissible because defendant's decision to take the breath test broke the causal chain between the prior Article I, section 12 violation and his breath test results." State v. Jarnagin, 251 Or 703, 277 P3d 535 (2012).

Area(s) of Law:
  • Criminal Procedure

March 38 summaries

Campos v. Jensen

The proper analysis under Neumann requires an examination of individual statements within the context of the review as a whole, a context which demonstrated in that instance that the statements were “not provably false” but, rather, statements of opinion or speculation. Neumann v. Liles, 358 Or 706 (2016).

Area(s) of Law:
  • Tort Law

D. M. v. Oregon Health Authority

When an agency withdraws an order under ORS 183.482(6) and then files an order on reconsideration that does not merely “affirm[] *** or modif[y] the order with only minor changes,” a petitioner must file a timely amended petition for judicial review of the order on reconsideration if the petitioner seeks to proceed with the case” and failure to timely file an amended petition for judicial review means that the proceeding must be dismissed for lack of jurisdiction. Haskell Corp. v. Filippi, 152 Or App 117 (1998).

Area(s) of Law:
  • Administrative Law

Dept. of Human Services v. G. P. B.

“A party opposing a change of permanency plan to adoption has the burden of proving the presence of a compelling reason to forgo that plan change.” Dept. of Human Services v. S. J. M., 364 Or 37, 430 P3d 1021 (2019).

Area(s) of Law:
  • Juvenile Law

Dept. of Human Services v. S. J. K.

“The proponent of the plan change need prove only that DHS made reasonable efforts to reunify the family and that the parents made insufficient progress to permit reunification. To avoid a plan change under those circumstances, the opposing party bears the burden of proving the presence of compelling reason under ORS 419B.498(2) to forgo a plan change." Dept. of Human Services v. S.J.M., 364 Or 37, 430 P3d 1021 (2018) (S.J.M. II).

Area(s) of Law:
  • Juvenile Law

Hill v. City of Portland

"'Ripeness' refers to 'an aspect of the doctrine of justiciability, speficially, the requirement that there be an actual, as opposedto hypothetical, injury to the individiual invoking the judicial power.'" Beck v. City of Portland, 202 Or App 360, 366, 122 P3d 131 (2005).

Area(s) of Law:
  • Land Use

Jimenez/Carlson v. Multnomah County

“[T]he text and context of the code . . . are the best indications of the code drafters’ intent." Polacek and Polacek, 349 Or 278, 284, 243 P3d 1190 (2010).

Area(s) of Law:
  • Administrative Law

M. A. B. v. Buell

Under FAPA, a petitioner seeking a restraining order has the burden of proving by a preponderance of the evidence that the respondent "(1) 'abused' petitioner in the 180 days preceding the filing of the petition, (2) presents an 'imminent danger of further abuse' to petitioner, and (3) 'represents a credible threat to the physical safety of the petitioner.'" Kargol v. Kargol, 295 Or App 529, 532 (2019) (quoting ORS 107.718(1)).

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

State v. Fuller

The Court must evaluate whether “the specific and articulate facts known to [the deputy] give rise to a reasonable inference that the defendant was transporting firewood ‘away from harvest or collection site.’” State v. Maciel-Figueroa, 361 Or 163, 165, 389 P3d 1121 (2017).

Area(s) of Law:
  • Evidence

State v. Miller

“An indictment that charges more than one offense must allege one or more of the bases for joinder in ORS 132.560(1)(b)(A) to (C): that the charges are ‘[o]f the same or similar character,’ ‘[b]ased on the same act or transaction,’ or ‘[b]ased on two or more acts or transactions connected together or constituting parts of a common scheme or plan.’ If the indictment does not allege the basis for joinder, then the defendant may demur to the indictment.” State v. Warren, 364 Or 105, 121-22, 430 P3d 1036 (2018); ORS 135.630(2).

Area(s) of Law:
  • Criminal Procedure

State v. Schmidt

Unless the trial court abuses its discretion, a ruling that evidence is admissible will not be reversed. State v. Robinson, 244 Or App 368, 380, 260 P3d 671 (2011), rev den, 352 Or 33 (2012).

Area(s) of Law:
  • Evidence

State v. Stull

"In general, in presenting closing arguments to the jury, counsel has 'a large degree of freedom' to comment on the evidence submitted and urge the jury to draw any [and] all legitimate inferences from that evidence," but that freedom does not permit "making statements of facts outside the range of evidence." Cler v. Providence Health System-Oregon, 349 Or 481, 487-88 (quoting Huber v. Miller, 41 Or 103, 115, 68 P 400 (1902)).

Area(s) of Law:
  • Evidence

State v. Weaver

Under ORAP 5.45(4)(a), "each assignment of error must demonstrate that the question or issue presented by the assignment of error timely and properly was raised and preserved in the lower court."

Area(s) of Law:
  • Appellate Procedure

State v. White

"Restitution is the ‘process to ask the criminal court to award damages that the victim would be able to obtain in a civil action.’” State v. Ramos, 358 Or 581, 368 P3d 446 (2016).

Area(s) of Law:
  • Sentencing

Myers v. Howton

"Whether there has been an intentional relinquishment or abandonment of a known right or privilege will depend on the particular circumstances of each case, including the defendant’s age, education, experience, and mental capacity; the charge (whether complicated or simple); the possible defenses available; and other relevant factors." State v. Meyrick, 313 Or 125, 132, 831 P2d 666 (1992).

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

State v. Connolly

In determining whether a defendant had "control" over another inmates PIN, "[t]he state may properly rely on the circumstantial evidence in the record to conclude that a reasonable fact-finder could infer from that evidence that defendant had control over the PINs." See State v. F.R.S., 294 Or App 656, 660, 432 P3d 1149 (2018).

Area(s) of Law:
  • Criminal Law

Travelers Ins. Co. v. Arevalo

Under ORS 656.382 and ORS 656.383, "attorney fees are contingent on achieving a favorable result," which cannot be “incurred” until a final order is issued, and a claimant finally prevails on a disputed issue. Travelers Ins. Co. v. Arevalo, 296 Or App 514, 521 (2019).

Area(s) of Law:
  • Attorney Fees

Cascade In Home Care, LLC v. Hooks

A fee award under ORS 656.382(2) is mandatory, while the filing of specific fee request is optional under OAR 438-015-0029, with the consequence that the board will award a fee that it considers reasonable even in the absence of a specific request. See, e.g., SAIF v. Wart, 192 Or App 505, 520-22, 87 P3d 1138 (2004).

Area(s) of Law:
  • Attorney Fees

Childers Meat Co., Inc. v. City of Eugene

A fee is “based on quantity” when “the quantity of hazardous substance used” is a “principal component of determining whether a user pays a fee” and Eugene Code 3.692 expressly establishes that connection by defining “hazardous substances user,” in part, as an entity that uses “any quantity of hazardous substance (above zero)” and the mere reference to quantity does not indicate that the fee is “quantity-based”. Advocates for Effective Regulation v. City of Eugene, 160 Or App 292, (1999) (Advocates I). Additionally, under Chapter II of the Eugene Charter, the city retains significant authority to adopt rules and ordinances that regulate entities also regulated by the charter itself and “all power of the city is vested in the city council,” except as expressly provided by the charter. Eugene Charter § 4(1).

Area(s) of Law:
  • Business Law

Dept. of Human Services v. P.W.

When reviewing an ineffective assistance of counsel claim, the court has held "[i]f we conclude that the evidentiary record is insufficient for us to resolve on appeal an unpreserved claim of ineffective assistance of counsel, we can, 'where appropriate,' remand to the juvenile court for an evidentiary hearing on the claim." Dept. of Human Services v. T.L., 358 Or 679, 703-04, 369 P3d 1159 (2016).

Area(s) of Law:
  • Juvenile Law

Halladay v. Board of Parole

“For offenders who committed their offenses between May 19, 1988 and April 4, 1990, it would violate the state and federal constitutional prohibitions on ex post facto laws for the board to rely on information other than a psychological evaluation in determining whether an offender’s parole release date should be deferred on the ground that the offender had a present severe emotional disturbance that made the offender dangerous to the health or safety of the community.” Peek v. Thompson, 160 Or App 260, 980 P2d 178, rev dismissed, 329 Or 553 (1999).

Area(s) of Law:
  • Administrative Law

Martinez v. Delgado-Galban

A plaintiff in a personal injuries case can recover reasonable medical expenses but there must be some evidence that the charges are reasonable. Tuohy v. Columbia Steel Co., 61 Or 527, 532, 122 P 36 (1912).

Area(s) of Law:
  • Tort Law

Monfore v. Persson

"To establish . . . inadequate assistance for purposes of Article I, section 11, petitioner [is] required to prove . . . that trial counsel 'failed to exercise reasonable professional skill and judgment’; and . . . 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:
  • Post-Conviction Relief

State v. A. S.

Consent is not limited to consent given by the person against whom evidence is offered . . . valid consent can be given by a third party if that person has control over access to or use of the premises or effects to be searched. United States v. Matlock, 415 US 164, 170-171 (1974).

Area(s) of Law:
  • Criminal Law

State v. Endicott

“A conditional or restricted consent to enter land creates a privilege to do so only in so far as the condition or restriction is complied with.” Restatement (Second) of Torts § 168 (1965); Strandholm v. Barbey, 145 Or 427, 440-41, 26 P2d 46 (1933).

Area(s) of Law:
  • Property Law

State v. Harrop

“Probable cause exists if, at the time of the stop, the officer subjectively believes that [an] infraction [has] occurred and if that belief is objectively reasonable under the circumstances.” State v. Isley, 182 Or App 186, 190, 48 P3d 179 (2002).

Area(s) of Law:
  • Traffic Infractions

State v. Jones

Questions that are necessary to secure an officer's safety or the safety of the public and are not designed solely to elicit testimonial evidence from a suspect are allowed as a public safety exception to the Fifth Amendment. New York v. Quarles, 467 US 649, 659, 104 S Ct 2626, 81 L Ed 2d 550 (1984).

Area(s) of Law:
  • Criminal Procedure

State v. M. G.

“To justify continued commitment on the ‘danger to others’ ground, the state must do more than establish that [A]ppellant was dangerous to others at one time.” State v. D. S., 243 Or App 328, 333, 258 P3d 1250 (2011). “[I]t must establish a factual foundation to predict [A]ppellant’s future dangerousness based on his condition at the time of the hearing in the context of his history.” Id.

Area(s) of Law:
  • Civil Commitment

State v. Olson

Fourth-degree assault is a felony, rather than a misdemeanor, if “[t]he person commits the assault knowing that the victim is pregnant.” ORS 163.160(3)(d).

Area(s) of Law:
  • Criminal Law

State v. Plueard

“[E]vidence about sexual grooming of children ‘was “scientific” evidence under OEC 702’ that could not be admitted ‘without first requiring the state to establish its scientific validity.’” State v. Henley, 363 Or 284, 422 P3d 217 (2018).

Area(s) of Law:
  • Evidence

State v. Roden

In analyzing evidence, the court needs to consider "the importance of the evidence to either party's theory of the case, noting evidence relating to a central issue - as opposed to a tangential one - will likely have a greater effect on the verdict." State v Basua, 280 Or App 339, 345, 380 P3d 1196 (2016).

Area(s) of Law:
  • Evidence

State v. T.M.

A past violent act “must provide a foundation to predict future dangerousness,” not merely have occurred, to support a determination that a person is dangerous to others due to a mental disorder. State v. L.R., 283 OR App 618, 625, 391 P3d 880 (2017).

Area(s) of Law:
  • Civil Commitment

State v. Totland

The court reviews “a trial court’s decision to overrule an objection to closing arguments for abuse of discretion.” State v. Logston, 270 Or App 296, 303, 347 P.2d 352 (2015). "In conducting this review, we review statements made by a party during argument in context, not in a vacuum.” State v. Purrier, 265 Or App 618, 621, 336 P3d 574 (2014).

Area(s) of Law:
  • Criminal Law

Stavrum v. Tudor

"To preserve an argument, an appellant 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.'" State v. Wyatt, 315 Or 335, 343, 15 P3d 22 (2002).

Area(s) of Law:
  • Contract Law

Warren v. Washington County

Pursuant to ORS 197.307(4), the “clear and objective requirement applies broadly to local governments’ application of standards, conditions, and procedures 'regulating the development of housing' generally, including 'needed housing.'"”

Area(s) of Law:
  • Land Use

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

Under ORS 419B.476(5)(d), "the person or entity seeking to assert one of the exceptions in ORS 419B.498(2) bears the burden of proving that an exception to the prompt filing of a termination petition applies." Dept. of Human Services v. S.J.M., 283 Or App 367, 393-94, 388 P3d 417(2017), rev'd, 364 Or 37, 430 P3d 1021 (2018).

Area(s) of Law:
  • Juvenile Law

State v. Craigen

"[A] defendant’s 'personal characteristics' are appropriately considered as part of the defendant’s 'situation' for purposes of the EED defense, whereas a defendant’s 'personality characteristics' or 'personality traits' are not permissibly considered as part of the defendant’s ‘situation.’” Zielinksi, 287 Or App at 780 (citing State v. Ott, 297 Or 375, 686 P2d 1001 (1984)).

Area(s) of Law:
  • Criminal Law

State v. Sarmento

To demonstrate that an officer’s less intrusive measures are “reasonably related to a traffic investigation and reasonably necessary to effectuate it, the state must present evidence that (1) the officer perceived a circumstance-specific danger and decided that [the action taken] was necessary to address that danger; and (2) the officer’s perception and decision were objectively reasonable.” State v. Jimenez, 357 Or 417, 430, 353 P3d 1227 (2015).

Area(s) of Law:
  • Criminal Law

State v. Y. B.

"Ordinarily, it is the appellant’s burden to 'furnish a sufficient record to demonstrate that the trial court []' erred." State v. Lavert, 164 Or App 280, 283, 991 P2d 1067 (1999). "And '[t]he burden of creating and providing a record rests with the party seeking to alter the decision.'” Foust v. American Standard Ins. Co., 189 Or App 125, 134 n 8, 74 P3d 1111 (2003).

Area(s) of Law:
  • Appellate Procedure

April 19 summaries

A. A. C. v. Miller-Pomlee

"Contact" does not require a "direct oral or visual connection between a petitioner and respondent;" it “is sufficient if the act, when learned, gives rise to an unwanted relationship or association between the petitioner and the respondent.” Boyd v. Essin, 170 Or App 509, 516-17, 12 P3d 1003 (2000), rev den, 331 Or 674 (2001).

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

Brown v. State Historic Preservation Office

“The interpretive amplification or refinement of an existing rule is a new exercise of agency discretion and must be promulgated as a rule under the APA to be valid.” Smith v. TRCI, 259 Or App 11, 25, 312 O3d 568 (2013).

Area(s) of Law:
  • Administrative Law

Dillard v. Premo

Pursuant to ORS 138.525(4), “[a] dismissal is without prejudice if a meritless petition is dismissed without a hearing and the petitioner was not represented by counsel.”

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

Hammel v. McCulloch

In order to prevail in a legal malpractice action, “[A] plaintiff must show, not only that the attorney was negligent, but also that the result would have been different except for the negligence.” Watson v. Meltzer, 247 Or App 558, 565, 270 P3d 289 (2011).

Area(s) of Law:
  • Civil Law

Schwartz and Battini

A “judge shall disqualify himself or herself in any proceedings in which *** [t]he judge has a personal bias or prejudice concerning a party***.” Oregon Code of Judicial Conduct, Rule 3.10(A)(1). “The rule governs both actual bias and perceived bias.” See In re Schneck, 318 Or 402, 407, 970 P2d 185 (1994).

Area(s) of Law:
  • Professional Responsibility

State v. Peirce

"The state may prove a defendant's knowledge with circumstantial evidence and reasonable inferences," but the inferred fact "must be one that a rational factfinder can be convinced follows beyond a reasonable doubt from the underlying facts." State v. Korth, 269 Or App 238, 242, 344 P3d 491 (2015).

Area(s) of Law:
  • Evidence

State v. Perez-Cardenas

“Two guilty verdicts for sexual abuse, based on touching two of the victim’s body parts in a single incident, [should be] merged into a single conviction” State v. Dugan, 282 Or App 768, 769, 387 P3d 439 (2016).

Area(s) of Law:
  • Sentencing

State v. Slaviak

Under State v. Ashkins, 357 Or 642, 659, 357 P3d 490 (2015), a defendant is entitled to a concurrence instruction when an indictment charges "a single occurrence of each offense, but the evidence permit[s] the jury to find any one or more among multiple, separate occurrences of that offense involving the same victim and the same perpetrator," unless the state "elect[ed] which occurrence it would prove." 357 Or at 659.

Area(s) of Law:
  • Criminal Law

Culver v. Deaver

“An evaluating court must look for clear and convincing evidence of whether the decedent intended the specific writing at issue to be his or her will at the time of its creation.” Estate of Whitlatch v. Richardson, 99 Or App 548, 553, 783 P2d 46 (1989).

Area(s) of Law:
  • Trusts and Estates

Fenimore v Blachly-Lane County C.E.A.

The court can “affirm on an alternative basis only if, (1) the facts of the record are sufficient to support the alternative basis for affirmance; (2) the trial court’s ruling is consistent with the view of the evidence under the alternative basis for affirmance; and (3) the record is materially the same as the one that would have been developed had the prevailing party raised the alternative basis for affirmance below.” Outdoor Media Dimensions, Inc. v. State of Oregon, 331 Or 634, 659-60, 20 P3d 180 (2001).

Area(s) of Law:
  • Disability Law

State v. Delp

Under Article I, section 16, of the Oregon Constitution, "all penalties shall be proportioned to the offense," and the courts assess this by considering "(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." State v. Rodriguez/Buck, 347 Or 46, 58, 217 P3d 659 (2009).

Area(s) of Law:
  • Sentencing

State v. Dodge

A suspect equivocally invokes their right to counsel, "when the suspect's statements or request is subject to more than one reasonable interpretation, one of which is that he or she is invoking the right to counsel. State v. Roberts, 291 Or App 124, 132, 418 P3d 41 (2018). "The question is whether a reasonable officer would have understood 'at least one plausible meaning' of the suspect's ambiguous statement or question 'to be that defendant was invoking the right to counsel.'" Id. at 133.

Area(s) of Law:
  • Criminal Procedure

State v. Williams

The Court of Appeals may only review the denial of a motion for a new trial if “the motion is based upon juror misconduct or newly discovered evidence.” State v. Sullens, 314 Or 436, 440, 839 P2d 708 (1992) (emphasis in original); see generally State v. Alvarez-Vega, 240 Or App 616, 619, 251 P3d 199, rev den, 350 Or 297 (2011) (concluding that the defendant's constitutional challenge was beyond the scope of our review because he failed to show how his claim fell within ORCP 64 B(4)).

Area(s) of Law:
  • Criminal Law

Baldwin v. Seida

The legislature’s intent can be understood by looking at the text of ORS 31.150(2)(a)-(b); in context, under State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009), the Court examined “submitted” and “judicial proceeding,” determining the plain meaning according to the dictionary definitions was “statements that are sent for consideration or presented for use in a court proceeding or a proceeding initiated to procure an order, decree, judgment, or similar action.”

Area(s) of Law:
  • Civil Law

Nancy Doty, Inc. v. WildCat Haven, Inc.

“Persons listed in [ORS 656.018(3)] enjoy a broad grant of immunity for workplace injuries, even if they are acting in more than one capacity at the time of the injury.” Varland v. Smith, 112 Or App 271, 274, 828 P2d 1053, rev den, 313 Or 628 (1992). ORS 656.018(3)(d) excepts parties from immunity only where they acted “wholly outside the capacity of their immunity.”

Area(s) of Law:
  • Workers Compensation

State v. Link

"The susceptibility of juveniles to immature and irresponsible material is not as morally reprehensible as that of an adult," therefore, “[f]rom a moral standpoint, it would be misguided to equate failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed." Roper v. Simmons, 543 US 551, 570, 125 S Ct 1183 (2005).

Area(s) of Law:
  • Constitutional Law

State v. Reineke

"[A]ll evidence of whatsoever nature tending to throw light upon the relations existing between the accused and the deceased and the feeling between them is competent." State v. Finch, 54 Or 482, 488-89, 103 P 505 (1909); “Evidence that shows a hostile relationship existed between a defendant and his victim tends to shed light on a defendant’s mens rea” State v. Moen, 309 Or 45, 68, 786 P2d 111 (1990).

Area(s) of Law:
  • Evidence

State v. S.E.R.

To civilly commit a person under ORS 426.005, “the evidence must supply a concrete and particularized ‘foundation for a predication of future dangerousness,’” to themselves or others, absent commitment. State v. S.R.J., 281 Or App 741, 748, 754-55, 386 P3d 99 (2016).

Area(s) of Law:
  • Civil Commitment

State v. Walker

Pursuant to ORS 801.265, a "farm tractor" is "a motor vehicle designed and used primarily in agricultural operations for drawing or operating other farm machines, equipment, and implements of husbandry."

Area(s) of Law:
  • Traffic Infractions

May 30 summaries

State v. Minor

Under ORS 137.106(1)(a), “the State is free to seek restitution damages, and the defendant is free to oppose them.” State v. Heisser, 350 Or 12, 27, 249 P3d 113 (2011).

Area(s) of Law:
  • Remedies

Allianz Global Risks v. ACE Property & Casualty Ins. Co.

Purchasers may be responsible for the liabilities of corporations they buy if they “expressly or impliedly agree to assume” them. Erikson v. Grande Ronde Lbr. Co., 162 Or. 556, 568, 92 P2d 170 (1939).

Area(s) of Law:
  • Insurance Law

Dept. of Human Services v. G. C. P.

“A direct comment on the credibility of a witness or a statement that is ‘tantamount’ to stating that another witness is truthful is not admissible, even if it is offered as part of a discussion of an admissible medical diagnosis.” State v. Beauvais, 357 Or 524, 543, 354 P3d 680 (2015).

Area(s) of Law:
  • Evidence

Pelican Bay v. Western Timber

To constitute a trade secret under ORS 646.461(4), information must both (1) gain value because it is not generally known and (2) be the subject of reasonable efforts to maintain that secrecy. Kaib’s Roving R.PH. Agency, Inc. v. Smith, 237 Or App 96, 103, 239 P3d 247 (2010).

Area(s) of Law:
  • Trade Secrets

Western Radio Services Co. v. Verizon Wireless, LLC.

In order to “establish a claim for trespass to chattels or conversion, a party must show an actual ownership interest in and the right to control the disputed property.” Mustola v.Toddy, 253 Or 658, 663 456 P2d 1004 (1969).

Area(s) of Law:
  • Property Law

Brumwell v. Premo

"Under Article I, section 11, '[t]o demonstrate that he is entitled to post-conviction relief, petitioner must show that counsel failed to exercise reasonable professional skill and judgment, and that petitioner suffered prejudice as a result of counsel's inadequacy.'" Sparks v. Premo, 289 Or App 159, 169, 408 P3d 276 (2017), rev den, 363 Or 119, cert den, ___ US ___, 139 S Ct 569 (2018).

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

Colton and Colton

Under ORAP 5.45(1), "except for discretionary plain error review . . . appellate court will not consider claim of error that was not preserved in lower court."

Area(s) of Law:
  • Appellate Procedure

Contreras v. Board of Parole

“Substantial reason *** requires the board to provide ‘some kind of an explanation connecting the facts of the case and the result reached.’” Jenkins v. Board of Parole, 356 Or 186, 188, 335 P3d 828 (2014). Additionally, “if the board’s reasoning is not obvious, its order *** must at least set for the bases for its inferences.” Mendacino v. Board of Parole, 287 Or App 822, 837, 404 P3d 1048 (2017).

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

Joling and Joling

"In summary, we hold that courts, when dealing with the property disputes of [partners] who have been living together in a non-marital domestic relationship, should distribute property based upon the express or implied contract of those parties." Beal and Beal, 282 Or 115, 122-23, 577 P2d 507 (1978).

Area(s) of Law:
  • Family Law

Marsh v. SAIF

“’To prevail on a new or omitted condition claim under ORS 656.267, claimants are required to establish, with medical evidence, the actual existence of the condition,’ and that proof of ‘mere symptoms’ is insufficient.” De Los-Santos v. Si Pac Enterprises, Inc., 278 Or app 254, 257, 373 P3d 1274 (2016). “OAR 436-060-0025(5)(a)(A) requires the ‘average weekly wage’ be calculated using the ‘actual weeks of employment.’”

Area(s) of Law:
  • Workers Compensation

Rinne v. PSRB

"An assertion of a finding of fact as part of an explanation for disregarding evidence is subject to attack if the fact relied upon is not, itself, supported by substantial evidence." Garcia v. Boise Cascade Corp., 309 Or 292, 296, 787 P2d 884 (1990). "The court shall set aside or remand the order if the court finds that the order is not supported by substantial evidence in the record." See ORS 183.482(8)(c).

Area(s) of Law:
  • Civil Commitment

T. J. N. v. Schweitzer

In order to acquire an SPO, “a petitioner must show by preponderance of the evidence, that ‘(a) the person intentionally, knowingly or recklessly engages in repeated and unwanted contact with the other person or a member of that person’s immediate family or household thereby alarming or coercing the other person; (b) it is objectively reasonable for a person in the victim’s situation to have been alarmed or coerced by the contact; and (c) the repeated and unwanted contact causes the victim reasonable apprehension regarding the personal safety of the victim or a member of the victim’s immediate family or household.’” ORS. 30.866(7); ORS. 30.866(1).

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

Bentley v. Multnomah County Sheriff's Office

“If the petitioner seeks relief from the bar on possessing or purchasing a firearm, relief shall be granted when the petitioner demonstrates, by clear and convincing evidence, that the petitioner does not pose a threat to the safety of the public or the petitioner.” ORS 166.274(7).

Area(s) of Law:
  • Criminal Law

Bush and Bush

“Although we exercise our discretion to review de novo only in exceptional cases, ORAP 5.40(8)(c), 'a lower court’s reliance on a crucial finding that does not comport with the evidence in the record can be a reason to exercise our discretion.'” Morgan and Morgan, 269 Or App 156, 159, 344 P3d 81 (2015).

Area(s) of Law:
  • Family Law

Columbia Riverkeeper v. Columbia County

“[W]hen a local government takes a reasons exception, ‘plan and zone designations must limit the uses, density, public facilities and services, and activities to only those that are justified in the exception.’” OAR 660-004-0018(4)(a).

Area(s) of Law:
  • Land Use

Frazier v. State of Oregon

“The court’s ‘authority to grant relief is not entirely constrained by the precise manner in which a petitioner alleges a claim for relief’ as it extends ‘to matters within the scope of the pleaded claims.’” Ogle v. Nooth, 292 Or App 387, 388, 424 P3d 759 (2018).

Area(s) of Law:
  • Criminal Law

Perez v. Cain

“In deciding if a claim may be heard on appeal, the court reviews claims on a case-by-case basis to determine if they reasonably could have been anticipated so as to have been raised and settled earlier.” Verduzco v. State of Oregon, 357 Or 553, 571 (2015) (quoting Long v. Armenakis, 166 Or App 94, 101, 999 P2d 461 (2000)).

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

State ex rel Val Hoyle v. City of Grants Pass

"ORS 652.060(1) provides fire departments with a ‘safe harbor,’ under which an employer is 'deemed to have complied with [ORS 652.060(1)] and ORS 652.070 if the hours of regular duty required of firefighters employed by it an average not more than [72 or 56] hours a week over each quarter of the fiscal year.'” (Emphasis added). Additionally, "ORS 652.070(1) requires employers to 'put into effect and maintain a schedule of working hours' that complies with ORS 652.060 . . . [i]f an employer fails to do so, it must pay overtime 'to every regularly employed firefighter as additional pay for every hour of regular duty required of and performed by the firefighter over and above the average hours established by ORS 652.060."

Area(s) of Law:
  • Administrative Law

State v. Hunt

“An adverse inference of guilt is likely when the testimony is not merely incidental and when nothing directs the jury’s focus away from it.”

Area(s) of Law:
  • Criminal Procedure

State v. Kamph

“[T]he ‘critical question’ that must be asked in determining whether the [dog] sniff violates the Fourth Amendment is whether the sniff ‘adds time to’ the [traffic] stop.” State v. Rosales, 291 Or. App. 762, 769, 423 P3d 112 (2018) (quoting Rodriguez v. United States, 135 S. Ct. 1609, 1616, 191 L. Ed. 2d 492 (2015).

Area(s) of Law:
  • Criminal Law

State v. Skillicorn

"The 'basic idea' behind that theory of relevance [the doctrine of chances] is 'the proposition that multiple instances of similar conduct are unlikely to occur accidentally." State v. Tena, 362 Or 514, 524, 412 P3d 175 (2018).

Area(s) of Law:
  • Evidence

Alexander Loop, LLC v. City of Eugene

To determine if a contract provision is ambiguous and thereby not suitable for summary judgment, the court first looks to the text of the disputed provision and if still ambiguous, it examines extrinsic evidence; if still ambiguous, the court looks to appropriate maxims of construction. Yogman v. Parrott, 325 Or 358, 937 P2d 1019 (1997).

Area(s) of Law:
  • Contract Law

Boatfield and Boatfield

"The general rules is that the amount of a support award is not justified if it is 'outside' the 'range of reasonableness by a significant enough margin so as not to be just and equitable in the totality of pertinent circumstances.'" Cullen and Cullen, 223 Or App 183, 194, 194 P3d 866 (2008).

Area(s) of Law:
  • Family Law

Bohanan v Amsberry

"For petitioners who are 'unable to pay the expenses of a proceeding,' ORS 138.590 creates an exception to the requirement under ORS 138.560(1) that the filing fee be paid at the time the petition is filed. ORS 138.590(1), (8). In that circumstance, 'all court fees in the circuit court' other than the filing fee are waived; the filing fee, however, 'is not waived but may be drawn from, or charged against, the petitioner's trust account if the petitioner is an inmate in a correctional facility.'" ORS 138.590(8)(b).

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

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

Where . . . the children 'have special needs and are healthily bonded to their foster parents, the issue is . . . whether the parent has waited too long to reform in light of the child’s pressing needs.'” State ex rel Dept. of Human Services v. A. L. S., 228 Or App 700, 723, 209 P3d 817, rev den, 347 Or 43 (2009).

Area(s) of Law:
  • Juvenile Law

Randle and Randle

“Upon motion of a party for an order to show cause why a judgment of separation should not be converted to a judgment of dissolution and after service of notice to the other party at least 30 days before the scheduled hearing, the court may, within two years after the entry of a judgment of separation, convert a judgment of separation into a judgment of dissolution of the marriage.” ORS 107.465(1).

Area(s) of Law:
  • Family Law

State v. Fudge

When a defendant shows, on the record, that they have an intellectual disability, the trial court must expressly consider the “constitutional implications” the disability may have in the determination of a constitutionally just penalty. State v. Ryan, 361 Or 602, 624, 396 P3d 867 (2017).

Area(s) of Law:
  • Sentencing

State v. Moravek

The trial court [has] an obligation to instruct the jury on passive resistance only if it is either an element of interfering with a police officer, State v. Gray, 261 Or App 121, 129, 322 P3d 1094 (2014), or a defense other than an affirmative defense that the defendant ‘raised’ at trial.State v. Abram, 273 Or App 449, 456, 359 P3d 431 (2015).

Area(s) of Law:
  • Criminal Law

State v. Partain

“Evidentiary error is not presumed to be prejudicial, OEC 103(1), and we will affirm despite an evidentiary error if there is ‘little likelihood that the particular error affected the verdict.’” State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003).

Area(s) of Law:
  • Evidence

State v. Walton

Pursuant to ORAP 5.45(1), the court has the “discretionary authority to review an unpreserved error that is plain . . . obvious and not reasonably in dispute, and apparent on the face of the record.”

Area(s) of Law:
  • Remedies

June 31 summaries

State v. Cook

“[W]here the issue is presented, a sentencing court must consider an offender’s intellectual disability in comparing the gravity of the offense and the severity of a mandatory prison sentence on such an offender in a proportionality analysis.” State v. Ryan, 361 Or 602, 620-21, 396 P3d 867 (2017).

Area(s) of Law:
  • Sentencing

State v. Haws

Generally, a "criminal defendant is entitled to have the jury instructed in accordance with his or her theory of the case if the instruction correctly states the law and there is evidence to support giving it." State v. Roberts, 293 Or App 340, 341, 427 P3d 1130 (2018).

Area(s) of Law:
  • Criminal Law

State v. J. J. S.

ORS 426.095(2)(c) “permits a ‘good cause’ postponement of a commitment hearing past the five-day judicial deadline, [but] that procedure is available only ‘when requested’ by certain parties, and only ‘to allow preparation for the hearing.’” State v. W. B. R., 282 Or App 727, 728, 387 P3d 482 (2016).  

Area(s) of Law:
  • Civil Commitment

State v. Newsted

"[E]vidence is sufficient to support a conviction for delivery where it shows that the defendant possessed a controlled substance in an amount inconsistent with personal use and possessed items associated with the delivery of a controlled substance such as . . . cash, or drug records." See, e.g., State v. Fulmer, 105 Or App 334, 336-37, 804 P2d 515 (1991).

Area(s) of Law:
  • Criminal Procedure

Wallace v. Holden

"A court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so 'continuous and systematic' as to render them essentially at home in the forum state. Specific jurisdiction, on the other hand, depends on an affiliatio[n] between the forum and the underlying controversy, principally, activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation." Goodyear Dunlop Tires Operations, S.A., v. Brown, 564 US 915, 919, 131 S Ct 2846, 180 L Ed 2d 796 (2011).

Area(s) of Law:
  • Civil Procedure

Aikens v. Board of Parole and Post-Prison Supervision

Reversal and remand are appropriate if "the board's order similarly did not disclose whether the board would have reached the same determination without the erroneous factual finding." See King v. Board of Parole, 283 Or App 689, 694, 389 P3d 1171 (2017).

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

Albany & Eastern Railroad Co. v. Martell

“To establish a prescriptive easement, a claimant ‘must establish an open and notorious use of [the owner’s] land adverse to the rights of [the owner’ for a continuous and uninterrupted period of ten years.’” Wels v. Hippe, 360 Or 569, 577, 385 P3d 1028 (2016). The use of property is “adverse” if “inconsistent with the owner’s use of the property or if it is undertaken not in subordination to the rights of the owner.” Id. at 578.

Area(s) of Law:
  • Property Law

Dept. of Human Services v. M.R.

“To determine whether a child’s absence from a state was temporary, Oregon courts use a ‘totality of the circumstances’ test, which ‘looks at all the surrounding circumstances of a purported temporary absence, including the intent of the parties and duration of absence, to assess whether the absence should be treated as a temporary departure from a putative home state.’” Schwartz and Battini, 289 Or App 332, 342-43 (2017).

Area(s) of Law:
  • Juvenile Law

Estrada v. Federal Express Corp.

“A worker may give notice [of a work-related accident to the employer] within one year after the date of the accident in some circumstances, including when the worker established that he or she had ‘good cause’ for failing to give notice within 90 days.” ORS 656.265(4)(c).

Area(s) of Law:
  • Workers Compensation

Miller v. Racing Commission

"Generally, equitable estoppel requires, among other things, a false representation." Day v. Advanced M&D Sales, Inc., 336 Or 511, 518-19, 86 P3d 678 (2004).

Area(s) of Law:
  • Employment Law

State v. Cave

Under Baughman, failure to first identify whether the evidence was admissible as propensity or nonpropensity evidence, before concluding the OEC 403 balancing test, requires reversal. State v. Baughman, 361 Or 386, 393 P3d 1132 (2017)

Area(s) of Law:
  • Criminal Procedure

State v. Gale

"[T]he state must first prove that defendant subjectively believed the victim to be under the age of 16. Then, after establishing that belief, the state must prove that the defendant's belief was objectively reasonable. ORS 163.433.

Area(s) of Law:
  • Criminal Law

State v. Nosbisch

Under ORS 137.106(5), “[i]f the defendant objects to the imposition, amount or distribution of the restitution, the court shall allow the defendant to be heard on such issue. . . .”

Area(s) of Law:
  • Criminal Law

State v. Payton

"'A defendant's intent to commit a crime at the time of an unlawful entry is central to the crime of burglary. Without it a defendant's conduct cannot constitute burglary of any degree; that intent is, in fact, the essence of the offense.'" State v. J.N.S., 258 Or App, 310, 319, 308 P3d 1112 (2013) (quoting State v. Chatelain, 220 Or App 487, 188 P3d 325 (2008)).

Area(s) of Law:
  • Criminal Law

State v. Sprow

“Evidence commenting on a suspect’s invocation of the right to remain silent or the right to counsel may require a mistrial ‘if it raises the impermissible inference that the defendant did so because he was guilty.’” State v. Hunt, 297 Or App 597, 600-601 (2019).

Area(s) of Law:
  • Criminal Law

State v. West

“ORS 166.025 provides that proof of one of the acts specified in ORS 166.025(1)(a) to (f) coupled with proof of one of the alternative mental states specified in ORS 166.025(1) will establish the crime of second-degree disorderly conduct.”

Area(s) of Law:
  • Criminal Law

Calpine Energy Solutions LLC v. PUC

Pursuant to ORS 757.210, "the PUC ‘may not authorize a rate or schedule of rates that is not fair, just and reasonable.’” ORS 757.210(1)(a).

Area(s) of Law:
  • Business Law

Coelsch v. State Farm Fire and Casualty Co.

“We are mindful that, in construing an insurance policy, we are to interpret terms according to what we perceive to be the understanding of the ordinary purchaser of insurance.” Hunters Ridge Condo. Assn. v. Sherwood Crossing, 285 Or App 416, 422, 395 P3d 892 (2017).

Area(s) of Law:
  • Insurance Law

Friends of Yamhill County v. Board of Commissioners

"[T]he present owner of the property is the only person whom a governing body may allow 'to use the property for a use permitted at the time the owner acquired the property.'" Former ORS 197.352(8) (2005)

Area(s) of Law:
  • Land Use

Smith v. Department of Corrections

“Policies that merely ‘undertake to explain the necessary requirements of [DOC’s] existing rules’ are not ‘rules’ as defined by ORS 183.310(9).” Smith v. TRCI, 259 Or App 11, 17 (2013).

Area(s) of Law:
  • Administrative Law

State v. Ames

In determining whether an assignment of error is adequately preserved, a court looks at "whether the policies that underlie the preservation requirement—giving the opposing party a fair opportunity to respond, fostering appellate review through full development of the record, and giving the trial court the opportunity to fully consider and rule in the first instance—have been served in a particular case." State v. Parkins, 346 Or 333, 340-41, 211 P3d 262 (2009). In assessing a defendant's requested waiver of jury trial, “[a]ll things considered, the paramount consideration remains whether a bench trial will fully protect a defendant’s rights.” State v. Austin, 274 Or App 114, 120, 360 P3d 603 (2015)

Area(s) of Law:
  • Criminal Procedure

State v. Connelly

A UUV conviction will be upheld when “there is evidence of ‘tampering’ and ‘foul play’ that is ‘relevant to defendant’s knowledge’ that [the] [vehicle] was stolen.” State v. Peirce, 296 Or App 829, 838, 440 P3d 98 (2019) (quoting State v. Bell, 220 Or App 226, 271-72, 185 P3d 541 (2008)).

Area(s) of Law:
  • Criminal Law

State v. Frischman

When one provision of a warrant is determined to be impermissibly overbroad in the context of a motion to suppress, “the impermissibly overbroad portion of the warrant may be excised, and the balance of the warrant upheld and that only those items seized under the invalid portion of the warrant must be suppressed.” State v. Burnham, 289 Or App 783, 785-786, 412 P3d 1233 (2018).

Area(s) of Law:
  • Evidence

State v. Jones

"If a term is used in one section of a statute, but not another, then it is assumed that the legislature intended the term to apply only to the section in which it is used." State v. Bailey, 346 Or 551, 562, 213 P3d 1240 (2009).

Area(s) of Law:
  • Criminal Law

State v. Waldron

“A trial court may recommend conditions of PPS, but has no statutory authority to impose them.” State v. Reed, 235 Or App 470, 474, 237 P3d 826 (2010).

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

Summit Real Estate Management v. Mid-Century Ins. Co.

“If there is more than one plausible interpretation [of an insurance policy], we examine the word or phrase in the context in which it is used in the policy and the broader context of the policy as a whole.” Bighorn Logging Corp. v. Truck Ins. Exchange, 295 Or App , 828-29, 437 P3d 287 (2019).

Area(s) of Law:
  • Insurance Law

Amalgamated Transit Union v. TriMet

Collective bargaining agreements “generally are interpreted in the same manner as are other contracts.” OUS v. OPEU, 185 Or App 506, 512, 60 P3d 567 (2002). If a provision is unambiguous, no further analysis is necessary or appropriate, and the court must “give the appropriate effect to the parties’ intentions.” Industra/Matrix Joint Venture v. Pope & Talbot, 341 Or 321, 332, 142 P3d 1044 (2006).

Area(s) of Law:
  • Arbitration

Preble v. Centennial School Dist. No. 287

"When confronted with multiple statutes that appear to conflict, courts are obliged to engage in a two part-analysis; [f]irst, they must determine whether there is any way to reconcile the apparent conflict without exceeding the bounds of reasonable construction of the wording of the statutes. . . Second, if such harmonizing is not possible, then the courts must apply established rules of construction that give precedence to one of the conflicting statutes over the other." See, e.g., Powers v. Quigley, 345 Or 432, 438, 198 P3d 919 (2008); State ex rel Juv. Dept. v. M. T., 321 Or 419, 426, 899 P2d 1192 (1995).

Area(s) of Law:
  • Workers Compensation

State v. Evensen

“The prohibitions in [ORS 165.540(1)(a)-(c)] do not apply to subscribers or members of their family who perform the acts prohibited in subsection (1) of this section in their homes.” ORS 165.540(3).

Area(s) of Law:
  • Evidence

State v. K.R.S.

“ORS 161.067(3) does not refer to ‘crimes’ at all; rather, it refers to criminal conduct. Conduct that is prohibited by criminal statutes, such as the statute defining first-degree sexual abuse, is criminal in nature whether it is an adult who engages in hat conduct or, instead of a juvenile.”

Area(s) of Law:
  • Juvenile Law

State v. Semore

“An officer’s subjective belief is objectively reasonable when the officer can point to specific and articulable facts that support a reasonable inference that the defendant has committed or is about to commit the crime that the officer suspects.” State v. Maciel-Figuroa, 361 Or 163, 184, 389 P3d 1121 (2017).

Area(s) of Law:
  • Criminal Law

July 22 summaries

Carter v. Waste Management Disposal Services of Oregon

In SAIF, the Court held that a medical expert’s “opinion is persuasive” but “in all events, a medical expert’s opinion that an increase of symptoms signifies an actual worsening of a particular compensable condition satisfies the actual worsening standard” as found in ORS 656.273. SAIF v. January, 166 Or App 620, 624 (2000).

Area(s) of Law:
  • Workers Compensation

Dept. of Human Services v. J. G. K.

Evidence demonstrating a parent’s ability to sufficiently care for their child is relevant at both initial and established jurisdiction hearings; however, if it is clear such evidence would not influence the court’s ruling, its exclusion is considered harmless. Dept. of Human Services v. T.L., 279 Or App 673, 678, 684-85, 379 P3d 741 (2016).

Area(s) of Law:
  • Juvenile Law

State v. Curry

"The discriminatory use of peremptory challenges by the prosecution causes a criminal defendant cognizable injury. . . [r]ather it is because racial discrimination in the selection of jurors 'casts doubt on the integrity of the judicial process,' and paces the fairness of a criminal proceeding in doubt." Powers v. Ohio, 499 US 400, 411-12, 111 S Ct 1364, 113 L Ed 2d 411 (1991).

Area(s) of Law:
  • Criminal Procedure

State v. Payne

When the trial court errs, the reviewing court is required to affirm the judgment of the trial court 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:
  • Criminal Law

State v. Payne

Jury concurrence is necessary “when the indictment charges a single violation of a crime but the evidence permits the jury to find multiple, separate occurrences of that crime.” State v. Pipkin, 354 Or 513, 517, 316 P3d 255 (2013).

Area(s) of Law:
  • Criminal Law

State v. Smartt

In a restitution proceeding under ORS 137.106(1)(a), “the state can demonstrate the reasonable value of medical expenses by offering evidence that the medical expenses reflect the usual and customary rate for those services in the market wherein they occur.” State v. Campbell, 296 Or App 22, 31, 438 P3d 448 (2019).

Area(s) of Law:
  • Sentencing

Burley v. Clackamas County

Pursuant to ORS 659.001(4)(a), "for the purposes of chapter 659A, ’employer’ means any person who in this state, directly or through an agent, engages or uses the personal service of one or more employees, reserves the right to control the means by which such service is or will be performed. Additionally, ORS 659.001(9)(b) states “’[p]erson’ includes . . . [a] public body as defined in ORS 30.260.’”

Area(s) of Law:
  • Employment Law

Eberhardt v. Providence Health and Service

A “trial court d[oes] not abuse its discretion by granting summary judgment without giving plaintiff additional time to submit” a response to pleadings when “[t]he court had already granted plaintiff additional time to file [the] response and made it clear to plaintiff that it would not allow any additional postponements.”

Area(s) of Law:
  • Civil Procedure

Goodwin v. NBC Universal Media - NBC Universal

Under ORS 656.319(1), an employer must be able to connect a hearing request to the particular denial or matter to which it relates; so a request for a hearing must be related to a particular denial by referencing the particular denial that is being challenged, either directly or indirectly.

Area(s) of Law:
  • Workers Compensation

State v. Cooper

“The decision to revoke probation is discretionary and may be exercised upon a finding that the offender has violated one or more conditions of probation . . . .” OAR 213-010-0001.

Area(s) of Law:
  • Criminal Law

State v. Olson

Substitution of counsel is required when there is a "'legitimate complaint concerning [appointed counsel]' that might rise to the level of requiring substitution." State v. Langley, 314 Or 247, 257, 839 P2d 692 (1992), adh’d to on recons, 318 Or 28, 861 P2d 1012 (1993).

Area(s) of Law:
  • Criminal Procedure

State v. Partain

Defendants are not required to preserve a challenge that is raised on appeal if the error appears for the first time in the judgment. State v. Lewis, 236 Or App 49, 52, 234 P3d 152 (2010).

Area(s) of Law:
  • Criminal Procedure

Bank of America, N.A., v. Carlson

“Those statements were not admissible under the hearsay exception for business records under OEC 803(6), which, subject to various requirements, allows for the admission of a ‘memorandum, report, record, or data compilation, in any form’…‘no part of that rule purports to render testimony about [the records] admissible over a hearsay objection.’” U.S. Bank National Assn. v. McCoy, 290 Or App 525, 534-536, 415 P3d 1116 (2018) (emphasis in original).

Area(s) of Law:
  • Property Law

Card and Card

ORS 107.105(1) “generally does not authorize a court to award property as spousal support” unless “the assets awarded in the property division may also generate new income that may be considered in determining future spousal support payments.” Johnson and Price, 280 Or App 71, 79, 380 P3d 983 (2016).

Area(s) of Law:
  • Family Law

State v. Savath

"The warrant must be sufficiently specific in describing the items to be seized and examined that the officers can, with reasonable effort, ascertain those items to a reasonable degree of certainty. . .[and] it must not authorize a search that is broader than the supporting affidavit supplies probable cause to justify.” State v. Mansor, 363 Or 185, 212 (2018).

Area(s) of Law:
  • Criminal Procedure

Mathis v. St. Helens Auto Center, Inc.

"ORS 652.200(2) does not contain any 'beat the offer' language. . . it simply provides for attorney fees in a particular type of action, subject to a few conditions. . . [and] is therefore unlike ORS 20.080(1), ORS 742.061(1), or ORCP 54 E."

Area(s) of Law:
  • Employment Law

Sanford v. Hampton Resources, Inc.

“To succeed on an IIER claim . . . [there must be] (1) the existence of a professional or business relationship (which could include, e.g. a contract or a prospective economic advantage), (2) intentional interference with that relationship, (3) by a third party, (4) accomplished through an improper means or for an improper purpose, (5) a causal effect between the interference and damage to the economic relationship, and (6) damages.” McGanty v. Staudenraus, 321 Or 532, 535, 901 P2d 841 (1995).

Area(s) of Law:
  • Business Law

State. Lachat

In a harmless-error analysis, a defendant’s testimony may be considered if it was obtained voluntarily and in such a manner as to not violate “constitutional protections against compelled confessions.” State v. McGinnis, 335 Or 243, 252-53, 264 P3d 1123 (2003).

Area(s) of Law:
  • Appellate Procedure

State v. Chapman

“Given . . . statutory and legislative history [of ORS 19.260(1)(a)(B)] we conclude that ordinary first-class mail was not what the legislature intended by the phrase. . . ‘mailed or dispatched by a class of delivery calculated to achieve within three calendar days . . ." The drafters intended to expand the categories of registered or certified mail to include expedited delivery services, but the drafters conspicuously refrained from substituting ordinary first-class mail.”

Area(s) of Law:
  • Civil Procedure

State v. Dickinson

In restitution cases, “the trial court [can] not simply rely on a review of [a victim’s medical bill] and ‘common sense’ to conclude that such charges were reasonable,” and the state is required to produce “additional testimony or evidence” to support that a medical bill is reasonable. State v. McClelland, 278 Or App 138, 141, 372 P3d 614 (2016).

Area(s) of Law:
  • Criminal Law

State v. Eatinger

When testimony is scientific, the State is required to lay foundation using the Brown/O’Key factors.  State v. O’Key, 321 Or 285, 899 P2d 663 (1995); State v. Brown, 297 Or 404, 687 P2d 751 (1984).

Area(s) of Law:
  • Evidence

State v. Ramirez

Pursuant to ORS 137.540, a defendant violates probation by violating a general or special condition of probation lawfully imposed by the court. 

Area(s) of Law:
  • Criminal Law

August 19 summaries

Bates v. Andaluz Waterbirth Center

“To hold a third-party beneficiary bound to an arbitration agreement, the third party beneficiary must have 'manifested assent to be bound by the agreement by ratifying it or asserting to a claim for relief under the agreement.'" Drury v. Assisted Living Concepts, Inc., 245 Or App 217, 224, 262 P3d 1162 (2011).

Area(s) of Law:
  • Contract Law

Bearden v. N. W. E., Inc.

"[W]hen the plaintiff claims that a co-worker created a hostile environment through sexual harassment, the employer is liable if the employer knew or should have known of the harassment and failed to take prompt remedial action ***." Harris v. Pameco Corp., 170 Or App 164, 177, 12 P3d 534 (2000).

Area(s) of Law:
  • Employment Law

Cohron v. Board of Parole

ORS 144.335 gives [the Court] jurisdiction to review a “final order” of the board on the petition of a person who is “adversely affected or aggrieved” by the order. ORS 144.335(1).

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

Dept. of Human Services v. D. R. D.

A psychological evaluation is authorized as a component of treatment or training under ORS 419B.387.

Area(s) of Law:
  • Juvenile Law

L. M. B. v. Cohn

To obtain an SPO against a person, a petitioner must demonstrate the factors under ORS 30.866(1) by a preponderance of the evidence; unless a respondent admits to a petitioner’s allegations, the factual allegations made in an SPO petition are not evidence. Falkenstein v. Falkenstein, 236 Or App 445, 449, 236 P3d 798 (2010).

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

Pride Disposal Co. v. Valet Waste, LLC

"[T]he 'collection' and 'transportation' of garbage. . . occurs when an approved collection container is collected from a designated pickup point by. . . collection vehicles on the scheduled day and then transported over the city streets to an authorized facility" [under the Tigard Municipal Code].

Area(s) of Law:
  • Municipal Law

State v. Brown

“The articulated facts need not support certainty that a suspect is engaged in criminal activity; rather, based on those specific facts, ‘a reviewing court must [be able to] conclude that the officer’s subjective belief could be true, as a matter of logic.’” State v. Fuller, 296 Or App 425, 429 (2017) quoting State v. Maciel-Figueroa, 361 Or 163, 184 (2017).

Area(s) of Law:
  • Criminal Procedure

State v. Doyle

A defendant may, in front of a jury, cross-examine a plaintiff about previously made accusations if "(1) the plaintiff recanted; (2) the defendant demonstrates to the court that those accusations were false; or (3) there is some evidence the plaintiff made prior false accusations, unless the 'probative value of the evidence…is substantially outweighed by the risk of prejudice, confusion, embarrassment or delay.'” State v. LeClair, 83 Or App 121, 129-30, 730 P2d 9 (1986).

Area(s) of Law:
  • Evidence

State v. Steele

“For an error to be plain error, it must be an error of law, obvious and not reasonably in dispute, and apparent on the record, without requiring the court to choose among competing inferences.” State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013).

Area(s) of Law:
  • Appellate Procedure

Bank of New York Mellon v. Delaney

The “holder” of a blank indorsement for a “promissory note secured by a trust deed” possesses the “right to enforce the note.” ORS 73.0301 (UCC §3-301); Nationstar Mortgage, LCC v. Peper, 278 Or App 594, 596, 377 P3d 678 (2016).

Area(s) of Law:
  • Business Law

Hulme v. City of Eugene

Pursuant to Eugene Code EC 9.2750, net density is defined as “the number of dwelling units per acre of land in actual residential use and reserved for the exclusive use of the residents.”

Area(s) of Law:
  • Land Use

Nelson v. Driver and Motor Vehicle Services

“A defendant's ‘mere acquiescence’ to police authority does not constitute voluntary consent.” State v. Stanley, 287 Or App 399, 407 (2017) (quoting State v. Berg, 223 Or App 387, 392 (2008)). 

Area(s) of Law:
  • Criminal Procedure

State v. Dearmitt

“Where multiple charges arise from a single criminal episode, ‘criminal conduct that violates only one statutory provision will yield only one conviction unless the so called ‘antimerger’ statute, ORS 161.067, operates so as to permit the entry of multiple convictions.’” State v. Reeves, 250 Or App 294, 304, 280 P3d 994 (2012); see also ORS 161.067(3).

Area(s) of Law:
  • Criminal Procedure

State v. McBride

“Under the unavoidable lull rule, whether an officer’s inquiry about a matter unrelated to the reasons for a traffic stop unlawfully extends the stop depends on whether the officer makes the inquiry instead of expeditiously proceeding with the steps necessary to complete the stop.” State v. Nims, 248 Or App 708, 713, 274 P3d 235, rev den, 352 Or 378 (2012).

Area(s) of Law:
  • Evidence

State v. Morrow

"OEC 404(3) unquestionably forbids the admission of evidence solely to show propensity or that the defendant is a bad person." State v. Johns, 301 Or 535, 548-49, 725 P2d 312 (1986).

Area(s) of Law:
  • Evidence

State v. McDougal

A trial court's contempt judgment should be reversed and remanded when "the trial court ha[s] applied an incorrect standard in determining that the defendant ha[s] violated a restraining order." State v. Heal, 298 Or App 806, ___ P3d ___ (2019).

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

State v. Salkoski

An inventory policy may lawfully authorize police officers to open closed containers that are either designed to hold valuables or are likely to contain them. See State v. Hite, 266 Or App 710, 720, 338 P3d 803 (2014).

Area(s) of Law:
  • Criminal Procedure

State v. Schmitz

Warrantless stops by police require reasonable suspicion (combination of an officer’s subjective and objective belief), by a showing of specific and articulable facts “particularized to the individual based on the individual’s own conduct”, that they had, or were about to, commit a crime. State v. Farrar, 252 Or App 256, 260, 287 P3d 1124 (2012); State v. Davis, 286 Or App 528, 532, 400 P3d 994 (2017); State v. Holdorf, 355 Or 812, 825, 333 P3d 982 (2014). An officer’s training and experience cannot contribute to the requisite particularized facts. Id. 260-62. The emergency aid exception justifies warrantless searches when there’s an “objectively reasonable belief…that a warrantless entry is necessary to” provide immediate or imminent aid. State v. Baker, 350 Or 641, 649, 260 P3d 476 (2011).

Area(s) of Law:
  • Criminal Procedure

Underhill v. Prock

In Morgan v. Hart, the court explained that "ORS 36.175 requires the circuit court to perform two acts with respect to a way of necessity claim: (1) to determine whether or not a need has been demonstrated for the granting of a way of necessity; and (2) to enter an order granting or denying the necessity. [Morgan v. Hart, 325 Or 348, 354 (1997)].”

Area(s) of Law:
  • Property Law

September 29 summaries

Providence Health Plan v. Allen

Under ORS 750.005(4)(a), an entity is a health care service contractor when it is “‘intimately connected with a group of doctors [and hospitals] licensed by this state’ and provides all the medical benefits to the plan’s participants.”

Area(s) of Law:
  • Insurance Law

State v. Ventris

The 1999 legislative amendment to ORS 138.083 granted the Board of Parole and Post-Prison Supervision the same authority it had to parole persons convicted of murder that it had to parole persons convicted of aggravated murder. State v. Giles, 254 Or App 349-50, 293 P3d 1086 (2012). ).

Area(s) of Law:
  • Sentencing

State v. White

“A person is not a ‘victim’ within the meaning of that provision unless the person (1) is the one against whom the defendant committed the crime and (2) incurred economic damages as a result.” State v. Moreno-Hernandez, 365 Or 175, 442 P3d 1092 (2019).

Area(s) of Law:
  • Remedies

Yarbrough v. Viewcrest Investments, LLC

"ORCP 71 A codified Oregon case law, which had previously given the court power to correct 'clerical, as contrasted with judicial errors, in order to make the record speak the truth and conform it to what actually occurred.'" Hubbard v. Hubbard, 213 Or 482, 487, 324 P2d 469 (1958).

Area(s) of Law:
  • Civil Procedure

Bank of New York Mellon Trust Co. v. Sulejmanagic

“[T]here is nothing in the plain language of ORS 100.450(7)(c) that requires such an action to be pending . . . rather the operative language in ORS 100.450(7)(c) turns on whether the lender has or has not ‘initiated judicial action.’”

Area(s) of Law:
  • Consumer Credit

State v. Chisholm

Under ORS 161.155, Criminal Liability for Conduct of Another, "A person is criminally liable for the conduct of another person constituting a crime if: .... (2) With the intent to promote or facilitate the commission of the crime the person: .... (b) Aids or abets or agrees or attempts to aid or abet such other person in planning or committing the crime."

Area(s) of Law:
  • Criminal Law

State v. M.A.E.

"A person meets the 'basic needs' definition of a '[p]erson with mental illness' under ORS 426.005(1)(f)(B) if the person is unable to provide for his or her basic personal needs in a way that leaves that person at nonspeculative risk of 'serious physical harm' - meaning that the person's safe survival will be compromised - in the near future, even though that risk is not imminent." State v. M. A. E., 299 Or App 231, 240 (2019).

Area(s) of Law:
  • Civil Commitment

State v. McNutt

If there is “little likelihood that an error affected . . . [a] verdict,” then it was a “harmless error” and any conviction in question because of it must be affirmed. State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003); OEC 103(1).

Area(s) of Law:
  • Evidence

State v. Tajipour

“[A] court must (1) determine which offense is the offense for which a consecutive sentence is contemplated; (2) compare the harms—real or potential—that arose from that offense with those that arose from the offense to which it will be sentenced consecutively; (3) determine whether the offense for which a consecutive sentence is contemplated caused or risked causing any harm that the other did not; and, if so, (4) determine whether the harm that is unique to that offense is greater than or qualitatively different from the harms caused or threatened by the other.” State v. Rettmann, 218 Or App 179, 178 P3d 333 (2008).

Area(s) of Law:
  • Sentencing

Bank of New York Mellon v. Owen

“ORS 86.797 cannot provide finality in a fundamentally flawed nonjudicial foreclosure sale” Troubled Asset Solutions v. Wilcher, 291 Or App 522, 530-31, 422 P3d 314 (2018), rev’d in part on other grounds, 365 OR 397, 445 P3d 881 (2019) (citing DiGregorio v. Bayview Loan Servicing, LLC, 281 Or App 484, 490-91, 381 P3d 961 (2016), rev den, 361 Or 100 (2017)).

Area(s) of Law:
  • Property Law

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

“An administrative search is a recognized exception to the warrant requirement. In general, a search qualifies for the exception if it is conducted for a purpose other than law enforcement… typical examples include health and safety inspections and certain inventory searches of lawfully seized automobiles.” State v. B.A.H., Or App 203, 206, 263 P3d 1047 (2011)(quoting State v. Anderson, 304 Or 139, 141, 743, P2d 715 (1987)).

Area(s) of Law:
  • Constitutional Law

Deyette v. Portland Community College

Pursuant to ORS 174.117(1)(e), "a community college district or community college service district established under ORS chapter 341 is a 'special government body' [but] is not an 'officer authorized by law to make rules'" under ORS 183.310(1).

Area(s) of Law:
  • Administrative Law

Gardner v. OHSU

For a medical malpractice claim, "findings of comparative fault can be based on the plaintiff's failure to take reasonable measures which might have prevented or reduced the injury caused by the defendant's negligence." Son v. Ashland Community Healthcare Services, 239 Or App 495, 509, 244 P3d 835 (2010).

Area(s) of Law:
  • Tort Law

Lane County v. Employment Department

“The issue depends. . . on whether a reasonable person facing that prospect of discharge would consider the prospect so grave a circumstance that resigning was the only reasonable option. McDowell v. Employment Dept., 348 Or 605, 619 (2010).

Area(s) of Law:
  • Administrative Law

Otnes v. PCC Structurals, Inc.

Pursuant to UTCR 21.080(5)(a), "A filer who resubmits a document under this subsection must include: '(i) [a] cover letter that sets out the date of the original submission and the date of rejection and that explains the reason for requesting that the date of filing relate back to the original submission.'" (emphasis omitted).

Area(s) of Law:
  • Appellate Procedure

Sky Lakes Medical Center, Inc. v. Klamath Falls

Pursuant to ORS 197.829(1), "LUBA is required to accept a local government’s interpretation of its own land use ordinance if that interpretation ‘plausibly accounts for the text and context’ of the ordinance.” Siporen v. City of Medford, 349 Or 247, 262, 243 P3d 776 (2010).

Area(s) of Law:
  • Land Use

State v. Hoseclaw

It is appropriate for the court to correct an error if the "plain error [is] based on the defendant's challenge to the sufficiency of the evidence given the gravity of the error and intervening change in the law." See State v. Inloes, 239 Or App 49, 54-55, 243 P3d 862 (2010).

Area(s) of Law:
  • Criminal Law

State v. Keith

“Improper joinder can prejudice a defendant in several ways, including if the defendant would testify regarding some charges but not others, if the defendant’s defenses to the charges could be viewed as inconsistent, if the evidence of one charge might improperly influence the jury’s verdicts on other charges, or if the evidence could confuse the jury. Therefore, if the disallowance of a demurrer allows charges to be tried together improperly and the joint trial affects the defense in any of those ways, the disallowance may be prejudicial.” State v. Warren, 364 Or 105, 430 P3d 1036 (2018)

Area(s) of Law:
  • Criminal Law

State v. Lafountain

To prove that a party is living somewhere else, the state must both prove that defendant was no longer living at his former residence and that defendant established a new residence. State v. Hiner, 269 Or App 447, 452, 345 P3d 478 (2015).

Area(s) of Law:
  • Criminal Law

State v. Reyes

"A person is not a victim within the meaning of [ORS 137.103(4)(a)] unless the person (1) is the one against whom defendant committed the crime and (2) incurred economic damages as a result." State v. White, 299 Or App 165, 168-169 (2019).

Area(s) of Law:
  • Criminal Law

Concienne v. Asante

Under ORS 12.110(4), “a medical malpractice action accrues ‘when the injury is first discovered or in the exercise of reasonable care should have been discovered.’” Kastle v. Salem Hospital, 284 Or App 342, 347, 392 P3d 374 (2017).

Area(s) of Law:
  • Bankruptcy Law

Day v. Day

"No estate or interest in real property, other than a lease for [a] term not exceeding one year, nor any trust or power concerning such property, can be created, transferred or declared otherwise than by operation of law or by a conveyance or other instrument in writing." ORS 93.020(1)

Area(s) of Law:
  • Property Law

Fuller v. Dept. of Public Safety Standards

In a substantial reason review, the courts look to whether the agency has “articulate[d] a rational connection between the facts and the legal conclusions it draws from them.” Jenkins v. Board of Parole, 356 Or 186, 195, 335 P3d 828 (2014). An agency order regarding a contested case that lacks such reasoning requires the Court to reverse and remand for the agency to correct the deficiency. Id.

Area(s) of Law:
  • Administrative Law

O'Kain v. Landress

“In the absence of an express agreement, a putative client’s subjective belief that there is a lawyer-client relationship must be accompanied by objective facts that make that belief reasonable.” Lahn v. Vaisbort, 276 Or App 468, 477, 369 P3d 85 (2016)

Area(s) of Law:
  • Civil Law

State v. J. M. E.

“For hospital or medical expenses to qualify as recoverable economic damages, the state must prove that the cost of such services was reasonable.'” See State v. Campbell, 296 Or App 22, 27, 438 P3d 448 (2019). "Submission of a hospital bill, without more, is insufficient proof for recovery of 'reasonable' hospital or medical services. Some additional testimony or evidence is required to support the reasonableness of the bill for the hospital or medical services." State v. McLelland, 278 Or App 138, 144, 372 P3d 614 (2016).

Area(s) of Law:
  • Remedies

Sternberg v. Lechman-Su

Under ORCP 47 G, "a court 'shall order' a party who presented an ORCP 47 affidavit or declaration in bad faith 'to pay to the other party the amount of the reasonable expenses that the filing of the affidavit or declaration caused the other party to incur, including reasonable attorney fees." "The phrase 'attorney's fees,' when used in the context of an attorney fee award, means the reasonable value of an attorney's services, whether or not the client was required to pay for those services." Menasha Forest Products Corp. v. Curry County Title, 50 Or 81, 89, 249 P3d 1265 (2011).

Area(s) of Law:
  • Attorney Fees

Walker v. Oregon Travel Information Council

To be protected from wrongful-discharge due to whistleblowing, one must have had “an objectively reasonable belief” that the conduct violated some law or regulation so as to make the conduct an important public-duty. Love v. Polk County Fire District, 209 Or App 474, 492, 149 P3d 199 (2006). Mere disagreements about practices and procedures that don’t actually violate the law are not protected by this public-duty exception. Id. at 493-94.

Area(s) of Law:
  • Employment Law

State v. Cunningham

"If the other requirements of ORS 137.542(2) are satisfied--that is, if a person holds a registry identification card and is sentenced to probation--the probation conditions related to the use of usable marijuana and specified cannabinoid products must comply with the statute.” State v. Jerscheid, 294 Or App 564, 566 (2018).

Area(s) of Law:
  • Sentencing

State v. Decleve

"[A] sentence that comports with the 'shift-to-I' rule, but violates the '200% rule, must be adjusted to comply with the latter." State v. Worth, 274 Or App 1, 26, 360 P3d 536 (2015), rev den, 359 Or 667 (2016).

Area(s) of Law:
  • Sentencing

October 48 summaries

Crown Property Management, Inc. v. Cottingham

"The provision must also designate an address where the tenant can mail notices to the landlord and a location where the tenant can affix notices, 'which shall be described with particularity in the written rental agreement, reasonably located in relation to the tenant and available at all hours.'" ORS 90.155(1)(c)(B).

Area(s) of Law:
  • Landlord Tenant

Dept. of Human Services v. R. A. B.

"Because . . . it is OEC 403 and OEC 702 that make a diagnosis of sex abuse inadmissible when it is not based on physical evidence, it is logical to conclude that it also is those rules of evidence that make testimony about the criteria used in such a diagnosis inadmissible."  State v. Black, 364 Or 579, 592-94, 437 P3d 1121 (2019).

Area(s) of Law:
  • Evidence

Field v. Myrick

“In Bogle, the court indicated that when faced with a church motion, a post-conviction court is being asked for one of two possible remedies—‘to either replace counsel or instruct counsel to raise those grounds for relief.’” Bogle v. State of Oregon, 363 Or 470-71, 423 P3d 715 (2018).

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

State v. Cannon

Search warrants which authorize the search of electronic devices are overbroad and invalid unless there is probable cause to support the search of each device. State v. Burnham, 287 Or App 661, 403 P3d 466 (2017); State v. Friddle, 281 Or App 130, 381 P3d 979 (2016). Officer training and experience may go towards creating the requisite probable cause if they are connected to “the facts of . . . [the] particular case.” Fridde, 281 Or App at 140.

Area(s) of Law:
  • Criminal Procedure

State v. Gibson

“Generally, a trial court has broad discretion in determining whether to reconsider its earlier rulings, and may revisit a pretrial ruling when events at trial unfold that call for adjustments to that ruling.” State v. Langley, 363 Or 482, 521, 424 P3d 688 (2018), adh’d to as modified on recons, 365 Or 418, 446 P3d 542 (2019).

Area(s) of Law:
  • Criminal Procedure

State v. Hernandez

"Officers may conduct a warrantless search incident to a defendant’s arrest when (1) the search relates to the crime for which the officer has arrested the defendant or a crime for which the officer has probable cause to believe that the defendant has committed and (2) the search is reasonable under the totality of the circumstances." State v. Owens, 302 Or 196, 204, 729 P2d 524 (1986).

Area(s) of Law:
  • Criminal Procedure

State v. Nickles

“[A] confession alone is not sufficient to warrant the conviction of the defendant without some other proof that the crime has been committed.” ORS 136.425(2); see, e.g., State v. Hauskins, 251 Or App 34, 40, 281 P3d 669 (2012).

Area(s) of Law:
  • Criminal Procedure

State v. Zaldana-Mendoza

"[W]e focus on 'the possible influence of the error on the verdict rendered, not whether this court, sitting as a factfinder, would regard the evidence of guilt as substantial and compelling.'" State v. Scott, 265 Or App 542, 335 P3d 1283 (2014).

Area(s) of Law:
  • Evidence

Windmill Inns of America, Inc. v. Cauvin

“To make out a case of waiver of a legal right there must be a clear, unequivocal, and decisive act of a party showing such a purpose.” Assn. of Oregon Corrections Emp. v. State of Oregon, 353 Or 183, 295 P3d 46 (2013) (quoting Metropolitan Edison Co. v. NLRB, 460 US 693, 708, 103 S Ct 1467, 75 L Ed 2d 387 (1983)).

Area(s) of Law:
  • Corporations

Barkers Five, LLC v. LCDC

The “best achieves” standard is “a balance in the designation of urban and rural reserves that, in its entirety, best achieves livable communities, the viability and vitality of the agriculture and forest industries and protection of the important natural landscape features that define the region for its residents.” OAR 660-027-0005(2)

Area(s) of Law:
  • Administrative Law

Dept. of Human Services v. K. S. W.

Under the relevant ICWA provisions, “any party seeking to effect a foster care placement of an Indian child shall satisfy the court that ‘active efforts’ have been made to provide services to prevent the breakup of the Indian family, and that those efforts have failed.” 25 USC 1912(d). Under Dept. of Human Services v. J.G., the court explained that when a party seeking placement “has satisfied the court at a prior [permanency] hearing on the placement at issue that active efforts were made and failed . . . the court is not required to make the finding again at a later proceeding. Dept. of Human Services v. J.G., 260 Or App 500, 521, 317 P3d 936 (2014).

Area(s) of Law:
  • Juvenile Law

P.K.W. v. Steagall

"[I]t is appropriate to continue FAPA restraining orders when there is evidence of post-separation events that established a continuing threat to petitioner's safety." Hubbell v. Sanders, 245 Or App 321, 263 P3d 1096 (2011).

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

State v. Baker

“The corroborative evidence must connect the Defendant with the charged crime, however, and it must do so in a way that does not depend on reference to the accomplice’s testimony.” State v. Riley, 365 Or 44, 48, 443 P3d 610 (2019).

Area(s) of Law:
  • Criminal Procedure

State v. Dowty

In order to reverse, a judgment revoking probation is based on whether an error in the course of the revocation proceedings may have been “prejudicial,” as opposed to whether the error was “harmless” under constitutional standards. State v. Milnes, 256 Or App 701, 711, 301 P3d 966 (2013).

Area(s) of Law:
  • Criminal Law

State v. Garrett

A waiver to the right to counsel may be valid if “under the totality of the circumstances, the record reflects that the defendant understood the risks of proceeding without counsel--that is, a defendant substantially appreciates the material risk of self-representation of his or her case.” State v. Borba, 290 Or App 787, 417 P3d 430 (2018).

Area(s) of Law:
  • Constitutional Law

State v. L. M.

“In a continued-commitment proceeding of the kind involved here, the trial court’s task is to “determine whether the person is still a person with mental illness and is in need of further treatment.” ORS 426.307. A ‘person with mental illness’ is defined to include a person who, because of a mental disorder, is “[u]nable to provide for basic personal needs that are necessary to avoid serious physical harm in the near future, and is not receiving such care as is necessary to avoid such harm.” ORS 426.005(1)(f). "We recently explained that the term ‘serious physical harm,’ as used in that statute, “means bodily harm that is serious enough that a person who suffers that harm is unsafe in the absence of commitment, treatment, or other amelioration of the physical condition.” State v. M.A.E., 299 Or. App 231, 239, __ P3d __ (2019). The risk of serious physical harm need not be ‘imminent’ or “immediate”; all the statute requires is that the person be unable to provide for such basic needs that are necessary to avoid such harm ‘In the near future.’” State v. M.A.E., 299 Or. App 240, P3d __ (2019) (quoting ORS 426.005(1)(f)).

Area(s) of Law:
  • Civil Commitment

State v. Ramoz

"ORCP 64 B(6) provides that a new trial may be granted following a jury trial where the party's substantial rights were materially affected by '[e]rror in law occurring at the trial and objected to or excepted to by the party making the application.'"

Area(s) of Law:
  • Civil Procedure

State v. Reed

A defendant asking, "[d]o I need one?" is not an invocation of the right to counsel. State v. Roberts, 291 Or App 124, 133, 418 P3d 41 (2018). Erroneous admission of evidence may be harmless if the court's speaking verdict did not cite the challenged evidence, or if it did, the record shows "the court would have found the Defendant guilty" without it. State v. Klontz, 257 Or App 684, 702, 308 P3d 214 (2013); State v. Montgomery, 217 Or App 139, 174 P3d 1040 (2007).

Area(s) of Law:
  • Evidence

State v. S.T.

The question to ask is "whether the evidence described . . . viewed in the light most favoring the state, provides 'a concrete and particularized foundation for a prediction of future dangerousness absent commitment.” State v. S. E. R., 297 Or App 121, 122, 441 P3d 254 (2019) (internal quotation marks omitted).

Area(s) of Law:
  • Civil Commitment

State v. Z. W. Y. (A167562)

The court may determine whether a party's mental disorder makes them "highly likely to engage in future violence towards others, absent commitment." See State v. S. E. R., 297 Or App 121, 122, 441 P3d 254 (2019).

Area(s) of Law:
  • Civil Commitment

Broeke v. SAIF

Under OAR 436-035-0230(14), so long as there is substantial evidence in the record to support that a worker may not be able to work exactly two hours in an eight-hour period, they may be entitled to “15% of the leg” recovery. Garcia v. Boise Cascade Corp., 309 Or 292, 294, 787 Pd 884 (1990). Under OAR 436-035-0019, a worker is entitled to a chronic condition impairment value if there is substantial evidence and reason to show use of the afflicted body part is restricted one-third, or more, of the time.

Area(s) of Law:
  • Workers Compensation

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

If a compelling reason exists to determine that filing a petition to terminate parental rights would not be in the child’s best interest, a plan of adoption cannot be continued. Dept. of Human Services v. M.H., 258 Or App 83, 85, 308 P3d 311 (2013).

Area(s) of Law:
  • Juvenile Law

Dept. of Human Services v. T. S. J.

“[F]or the juvenile court to have jurisdiction over a child pursuant to ORS 419B.100 (1)(c), the child’s condition or circumstances must give rise to a threat of serious loss or injury to the child. The threat must be current. And, there must be a reasonable likelihood that the threat will be realized.” Dept. of Human Services v. A. F., 243 Or App 379, 386, 259 P3d 957 (2011).

Area(s) of Law:
  • Juvenile Law

Sanders v. Brown

"[Adequate assistance] of counsel is particularly important when a defendant is called upon to waive fundamental rights, as by a guilty plea or waiver of jury trial[.]" Krummacher v. Gierloff, 290 Or 867, 874-75, 627 P2d 458 (1981).

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

State v. Baccaro

A trial court erred by imposing a probation violation fee pursuant to statute in the written judgment when the fee was not announced in defendant’s presence. State v. Hillman, 293 Or App 231, 426 P3d 249 (2018).

Area(s) of Law:
  • Criminal Procedure

State v. Brown

“In [State v.] Jackson, we explained that, when the trial court’s ruling was anticipatory and merely revealed the trial court’s inclinations, the ruling could not be challenged on appeal; counsel needed to do something more to give rise to a final appealable ruling, such as offer or object to specific evidence at trial. 68 Or App at 513.”

Area(s) of Law:
  • Evidence

State v. Clarke

Because defendant expressly acknowledged to the court that his argument did mischaracterize the evidence, his contention on appeal is not preserved. See State v. Craigen, 296 Or App 772, 777, 439 P3d 1048 (2019); An error is “plain” if it is (1) of law, (2) “obvious and not reasonably in dispute,” and (3) it appears on the record such that there is no need to “choose among competing inferences.” ORAP 5.45 n 1; Ailes v. Portland Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956 (1991).

Area(s) of Law:
  • Evidence

State v. Gatewood

The Court followed its approach in State v. Moncada, “[t]o determine the identity of the ‘victim’ for consecutive-sentencing purposes, we refer to the substantive statute defining the relevant criminal offense.” 241 Or App 202, 250 P3d 31 (2011), rev den, 351 Or 546 (2012).

Area(s) of Law:
  • Sentencing

State v. Pittman

“If the existence, location, and authenticity of documents is a foregone conclusion, then compelling a person to assemble those documents for production does not reveal the person’s mental processes and therefore is not sufficiently testimonial to trigger Fifth Amendment protection. However, if the government has minimal information about what documents exists or what they contain, the act of locating and selecting the documents to produce may require the subpoena recipient to use his or her own mental processes in a way that renders the resulting response testimonial in nature.” See Fisher v. United States, 425 US 391, 411, 96 S Ct 1569, 48 L Ed 2d 39 (1976).

Area(s) of Law:
  • Constitutional Law

State v. Rossiter

"[I]t is not this court's function to speculate as to what a party's argument might be.  Nor is it our proper function to make or develop a party's argument when that party has not endeavored to do so itself." Beall Transport Equipment Co. v. Southern Pacific, 186 Or App 696, 700 n2, 64 P3d 1193, adh'd to on recons, 187 Or App 472, 68 P3d 259 (2003). 

Area(s) of Law:
  • Evidence

State v. Sassarini

"Where a proponent has made that prima facie showing [that evidence is what the proponent claims it to be], the matter of authenticity is one for the ultimate factfinder at trial, not a preliminary ruling by the court." See OEC 104(2); Legislative Commentary on OEC 901, reprinted in Oregon Evidence § 901.02 at 946.

Area(s) of Law:
  • Evidence

State v. Smith

If a detective’s testimony is determined to be scientific evidence, the evidence requires a foundation to show its scientific validity. State v. Plueard, 296 Or App 580, 439 P3d 556, adh’d to as modified on recons, 297 Or App 592, 443 P3d 1195 (2019), and State v. Evensen, 298 Or App 294, 315, 447 P3d 23 (2019).

Area(s) of Law:
  • Criminal Law

State v. South

“Law enforcement may constitutionally extend a traffic stop as long as the officer’s inquiries are ‘reasonably related’ to the traffic stop.” State v. Aguirre-Lopez, 291 Or App 78, 84-85, 419. P3d 751 (2018). In State v. Miller, two issues were addressed: "(1) whether an officer’s circumstance-specific perception of danger can be based entirely on circumstances that are not particular to the determined person; and (2) what a reviewing court considers to determine whether the state has proved that the officer’s perception and decision were objectively reasonable.” State v. Miller, 343 Or 374, 383, 422, P3d 240 adh’d to as modified on recons, 363 Or 742, 428 P3d 899 (2018).

Area(s) of Law:
  • Criminal Procedure

State v. Wyant

The confrontation clause only applies to hearsay evidence; text messages between a victim and Defendant give context to Defendant’s admissible texts and are not hearsay. State v. Moore, 334 Or 328, 334, 49 P3d 785 (2002); State v. Davis, 291 Or App 146, 419 P3d 730, 363 Or 481 (2018).

Area(s) of Law:
  • Evidence

Trent v. Connor Enterprises, Inc.

ORS 652.200(2) requires reasonable attorneys’ fees when the court rules for the plaintiff, except if “the court finds that the plaintiff’s attorney unreasonably failed to give written notice of the wage claim to the employer before filing the action.” ORS 652.200(2).

Area(s) of Law:
  • Attorney Fees

Brooks v. Tube Specialties - TSCO International

Under OAR 436-060-0140(1)(a), "[a] reasonable investigation is whatever steps are a reasonably prudent person with knowledge of the legal standards for determining compensability would take in a good faith effort to ascertain the facts underlying a claim, giving due consideration to the cost of the investigation and the likely value of the claim."

Area(s) of Law:
  • Workers Compensation

Evans v. Nooth

Claims of inadequate counsel are reviewed on a case-by-case basis, subject to the judge’s discretion, regarding the reasonableness of the counselor’s representation from the counselor’s “perspective at the time of the alleged error and in light of all the circumstances.” Kimmelman v. Morrison, 477 US 365, 381, 106 S Ct 2574 (1986). Some evidence of the “broader objectives of [the] litigation” is required to perform this assessment. Evans, at 338.

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

King v. SAIF

The “going and coming” rule applies when “injuries sustained while an employee is traveling to or from work do not occur in the course of employment.” See SAIF v. Massari, 291 Or App 349, 420 P3d 659 (2018).

Area(s) of Law:
  • Workers Compensation

Simi v. LTI Inc.-Lynden Inc.

“ORS 656.802(1)(a) defines an occupational disease as ‘any disease or infection arising out of and in the course of employment . . . including: (c) [a]ny series of traumatic events or occurrences which requires medical services or results in physical disability or death.”

Area(s) of Law:
  • Workers Compensation

State v. C. K.

"A person meets the 'basic needs' definition of a '[p]erson with a mental illness' . . . if the person is unable to provide for his or her basic personal needs in a way that leaves the person at nonspeculative risk of 'serious physical harm’–meaning that the person's safe survival will be compromised–in the near future, even though that risk is not imminent." State v. M.A.E., 299 Or App 231, 240, 448 P3d 656 (2019).

Area(s) of Law:
  • Civil Commitment

State v. Carpenter

“The legislature did not intend the term ‘conceals’ in ORS 162.325(1)(a) to include denying knowledge about a wanted person or his or her whereabouts. Rather, ‘conceals’ for hindering prosecution requires conduct by the defendant that hides the statutory object of concealment—a person who committed a crime punishable as a felony—from ordinary observation.” State v. Carpenter, 365 Or 488, 446 P3d 1273 (2019).

Area(s) of Law:
  • Criminal Procedure

State v. Davis-McCoy

“The appellate court has no authority to review any part of a sentence resulting from a stipulated sentencing agreement between the state and the defendant." ORS 38.105(9).

Area(s) of Law:
  • Sentencing

State v. Ham

Pursuant to ORS 161.067(2), "when the same conduct or criminal episode, though violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims.’’

Area(s) of Law:
  • Criminal Law

State v. Lawson

"To have probable cause, an officer must subjectively believe that a violation has occurred, and that belief must be objectively reasonable under the circumstances." State v. Stookey, 255 Or App 489, 491, 297 P3d 548 (2013).

Area(s) of Law:
  • Criminal Procedure

State v. Lobue

ORS 162.205(1)(a) makes it a crime to knowingly fail to appear only after “[h]aving by court order been released from custody or a correctional facility under a release agreement or security release upon the condition that the person will subsequently appear personally in connection with a charge.”

Area(s) of Law:
  • Criminal Law

State v. Smith

“When the record does include a written waiver, and the parties dispute whether the waiver was effective for the convictions a defendant challenges on appeal, the question before us on plain-error review is whether the record allows competing inferences about the ‘defendant's intent when he signed (the document in the record).’ State v. Akers, 221 Or App 29, 188 P3d 417 (2008).”

Area(s) of Law:
  • Criminal Procedure

State v. Vandruff

To determine if a trial court erred, there must be a record on appeal with sufficient facts to make such a determination. C.P. v. N.L., 274 Or App 180, 181, 359 P3d 1248 (2015).

Area(s) of Law:
  • Evidence

Wiggins v. SAIF

The standard in the form ("more than 2/3 of the time") was not the same as the WCD interpretation because under that interpretation, “a person is significantly limited in the repetitive use of a body part if the person ‘can use the body part repetitively for up to, but no more than, two-thirds of the time.’” Broeke v. SAIF, 300 Or App 91 (2019).

Area(s) of Law:
  • Workers Compensation

November 20 summaries

Department of Human Services v. A.D.J.

To move from reunification to adoption, a juvenile court must “determine whether [(1) DHS] has made reasonable efforts [towards reunification]…[(2)] the parent has made sufficient progress…[for the child]… to safely return,” and (3) there is an existing circumstance to support abandoning or delaying termination of parental rights. ORS 419B.476(2)(a); ORS 419B.476(5)(d); ORS 419B.498(1)-(2).

Area(s) of Law:
  • Juvenile Law

Dreyer v. PGE

"The term 'law of the case' is best reserved for use in the context in which a party seeks to relitigate an appellate decision.  Use of the term to address other issues may confuse rather than clarify." Kennedy v. Wheeler, 356 Or 518, 531, 341 P3d 728 (2014).

Area(s) of Law:
  • Appellate Procedure

State v. Craigen

"The subcategories in OAR 213-018-0070 assign a different degree of criminal seriousness based on the type of contraband in the inmate's possession, not the manner in which the inmate used the contraband."

Area(s) of Law:
  • Criminal Law

State v. Gustafson

The Court will consider five factors in its evaluation to determine whether a reasonable inference exists that the evidence will be where the affidavit suggests: "(1) the length of time; (2) the 'perishability' versus the durability of the item; (3) the mobility of the evidence; (4) the 'nonexplicity inculpatory character' of the evidence; and (5) the 'propensity of an individual suspect or general class of offenders to maintain and retain possession of such evidence.'" State v. Van Osdol, 290 Or App 902, 909 (2018) (quoting State v. Ulizzi, 246 Or App 430, 438-39 (2011)). 

Area(s) of Law:
  • Criminal Procedure

State v. Miller

"In order to establish that an individual ‘acquires’ a new residence, the state must prove that the person was ‘settled beyond just a transient visitor sojourn.’”  State v. LaFountain, 299 Or App 311, 327 (2019). 

Area(s) of Law:
  • Criminal Law

State v. Rossiter

Area(s) of Law:
  • Criminal Procedure

De Lanoy v. Taylor

"[W]hen only one party asks for a declaration, it is incumbent on the court to declare the respective rights of the parties." See Akles v. State of Oregon, 298 Or App 283, 284, 444 P3d 532 (2019).

Area(s) of Law:
  • Remedies

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

"A parent raising an inadequate-assistance claim bears the burden of proving 'not only that trial counsel was inadequate, but also that the inadequacy prejudiced the parent's rights to the extent that the merits of the juvenile court's decision are called into serious question.'" Dept. of Human Services v. M. E., 297 Or App 233, 245, 441 P3d 713 (2019).

Area(s) of Law:
  • Juvenile Law

De Young v. Brown

Under a substantial benefit theory, for a court to award attorney’s fees under its inherent equitable authority, the party seeking the award must have done so in a representative capacity either “for the benefit of…[an]… entire organization” or if to not award the seeking party would deny or inhibit equitable relief, and the action must have conferred a “substantial benefit” on others. Bova v. City of Medford, 264 Or App 763, 767, 333 P3d 1144, re den, 356 Or 574 (2014); Gilbert v. Hoisting & Port. Engrs., 237 Or 130, 142, 384 P2d 136 (1963), cert den, 376 US 963 (1964).

Area(s) of Law:
  • Attorney Fees

Maza v. Waterford Operations, LLC

In interpreting an administrative rule, the Court applies the same general principles applicable to an interpretation of statutes to determine the intention of the administrative agency that adopted the rule. Marshall’s Towing v. Department of State Police, 339 Or 54, 62, 116 P3d 873 (2005).

Area(s) of Law:
  • Administrative Law

Mitchell v. State of Oregon

“In reviewing the denial of a post-conviction claim based on inadequate assistance of counsel, the first question is ‘whether petitioner demonstrated by a preponderance of the evidence that his lawyer failed to exercise reasonable professional skill and judgment.’" Montez v. Czerniak, 355 Or 1, 7, 322 P3d 487 (2014) (citation omitted). "Second, if we conclude that petitioner met that burden, we further must determine whether he proved that counsel’s failure had a tendancy to affect the result of his trial." Id. (citation omitted).

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

State v. Longoria

In State v. Bistrika, the court overturned a conviction by a jury, because the failure to state a limitation on the jury instructions “probably created an erroneous impression of the law in the minds of the jurors which affected the outcome of this case.” State v. Bistrika, 262 Or App 385, 407, 324 P3d 584, rev den, 356 Or 397 (2014).

Area(s) of Law:
  • Criminal Procedure

State v. M.B.

"Under the current standard, 'serious physical harm' means a nonspeculative threat that the person will not safely survive without treatment, and 'in the near future' means something less immediate than 'imminent' but not so attenuated from present circumstances as to render it speculative." State v. M.A.E., 299 Or App 231, 239-40, 237 448 P3d 656 (2019).

Area(s) of Law:
  • Civil Commitment

State v. Smith

"If there is a significant danger that the jury will be misled by hearing evidence of a writing, act, declaration, or conversation taken out of context the rule [OEC 106] authorizes the supplementary evidence to be admitted contemporaneously." Laird C. Kirkpatrick, Oregon Evidence § 106.04, 69-70 (6th ed 2013).

Area(s) of Law:
  • Evidence

Vasilash v. Cain

"Under Article I, section 11, where the effect of an attorney's failure during a jury trial is at issue, only those errors that 'could have tended to affect' the outcome of the trial require [reversal]." Farmer v. Premo, 363 Or 679, 700-01, 427 P3d 170 (2018) (quoting Green v. Franke, 357 Or 301, 322, 350 P3d 188 (2015).)

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

Bishop v. KC Development Group, LLC

“Whether a case is moot depends on whether a justiciable controversy exists." Brumnett v. PSRB, 315 Or 402, 405, 848 P2d 1194 (1993). "In a declaratory judgment action like the present one, a justiciable controversy ‘must involve a dispute based on present facts rather than on contingent or hypothetical events.’" TVKO v. Howland, 335 Or 527, 534, 73 P3d 905 (2003).

Area(s) of Law:
  • Land Use

Department of Human Resources v. C.L.M.

“If the bases for the juvenile court’s jurisdiction ‘cease to exist,’ then the juvenile court must terminate the warship and dismiss the case[.]" Dept. of Human Services v. T.L., 279 Or App 673, 678, 379 P3d 741 (2016).

Area(s) of Law:
  • Juvenile Law

Dept. of Human Services v. T. L. H.

Under ORS 419B.387, "[i]f the court finds in an evidentiary hearing that treatment or training is needed by a parent to correct the circumstances that resulted in wardship or to prepare the parent to resume the care of the ward, the court may order the parent to participate in the treatment or training if the participation is in the ward's best interests."

Area(s) of Law:
  • Juvenile Law

State v. Coons

“An error is ‘plain; if it is (1) of law, (2) obvious and not reasonably in dispute, and (3) it appears on the record such that there is no need to choose among competing inferences.” State v. Clarke, 300 Or App 74, 80, ___ P3d ___ (2019) (second and third internal quotation marks omitted).

Area(s) of Law:
  • Sentencing

State v. Taylor

For crimes resulting in economic damages, the district attorney is required to present evidence of damages “at the time of sentencing or within 90 days after entry of the judgement,” but “the court may extend…[the deadline] for good cause (does not “include prosecutorial inadvertence or neglect”). ORS 137.106(1)(a); State v. Martinez, 246 Or App 383, 387, 265 P3d 92, rev den, 351 Or 507 (2011).

Area(s) of Law:
  • Remedies

December 22 summaries

Business Development Dept. v. Huttenbauer

A negotiable instrument is defined for purposes of chapter 73 as a written order or promise of payment that is “(1) unconditional;...” ORS 73.0104(1); see UCC § 3-103 cmt 1 (2002). A party may avoid a contract under a fraud-in-the-inducement theory by proving that the other party to the contract made a false representation of material fact and that the person to whom the representation was made was induced to enter the agreement in reliance on that misrepresentation. See, e.g., Graves v. Tulleners, 205 Or App 267, 276-77, 134 P3d 990 (2006).

Area(s) of Law:
  • Contract Law

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

"[I]n order for a juvenile court to take jurisdiction over a child on the ground that the child is endangered, the state must establish both that the child is at risk of a certain severity of harm and that there is a reasonable likelihood that the risk will be realized." Dept. of Human Services v. S. D. I., 259 Or App 116, 121, 312 P3d 608 (2013).

Area(s) of Law:
  • Juvenile Law

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

Under ORS 419B.157, “the jurisdiction of the juvenile court of the county in which a child is taken into protective custody shall attach from the time the child is taken into custody.” "'Jurisdiction' in that statute is necessarily a reference to subject matter jurisdiction because, at the time a child is taken into custody, the court will not have had the opportunity to make the factual findings and legal determination required by ORS 419.310(3) to assert dependency jurisdiction over a child.”

Area(s) of Law:
  • Juvenile Law

Joseph Mill Property, LLC v. S&V Properties, LLC

Unlike most states, Oregon recognizes the possibility of an irrevocable license in certain circumstances. Brown v. Eoff, 271 Or 7, 10-11, 530 P2d 49 (1975). "A license that has been partially executed gives the licensee an irrevocable license for the limited purpose of removing the licensee's personal property that is located on the licensor's land."

Area(s) of Law:
  • Property Law

State v. Arevalo

"For most misdemeanors, the sentence is entirely a matter of trial court discretion." State v. Rice, 114 Or App 101, 105 (1992).

Area(s) of Law:
  • Criminal Procedure

State v. Basham

“[A]n instruction is appropriate if it correctly states the law and is supported by evidence in the record, when the evidence is viewed in the light most favorable to the party requesting the instruction,” in this case the state. State v. Ashkins, 357 Or 642, 648, 357 P3d 490 (2015); For a Miles instruction to be proper, “there must be evidence that [the defendant’s physical condition] made [the] defendant more susceptible to the effects of alcohol than he otherwise would have been[.]” State v. Huck, 100 Or App 193, 197, 785 P2d 785 (1990).

Area(s) of Law:
  • Criminal Procedure

State v. Bentley

For accomplice liability, “[a] person is criminally liable for the conduct of another person constituting a crime if: … [w]ith the intent to promote or facilitate the commission of the crime the person: … [a]ids or abets or agrees or attempts to aid or abet such other person in planning or committing the crime.” ORS 161.155(2)(b); A sentencing court could conclude that a defendant was disqualified from receiving a lesser sentence under ORS 137.712 if the victim suffered a significant physical injury in the course of a crime, regardless of whether or not the defendant being sentenced had personally inflicted that injury.” State v. Arnold, 214 Or App 201, 164 P3d 334 (2007); Three nonexclusive factors to determine whether a sentence is disproportionate, under Article I, section 16: “(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.” State v. Rodriguez/Buck, 347 Or 58, 217 P3d 659 (2009).

Area(s) of Law:
  • Criminal Law

State v. Brooks

"The scope of the right to counsel encompasses those stages of a criminal proceeding 'when [a defendant] must take steps or make a choice which is likely to have a substantial effect on the prosecution against him.'" State v. Miller, 254 Or 244, 249, 458 P2d 1017 (1969). "When a defendant asks to represent himself, the court must determine, on the record, whether his decision is an intelligent and understanding one." Id. at 523 (citing State v. Davis, 110 Or App 358, 360, 822 P2d 736 (1991)).

Area(s) of Law:
  • Criminal Procedure

State v. Burris

Whenever the State is proceeding under the aid-and-abet theory, as well as the principle liability theory, "a trial court must charge the jury as to its concurrence obligation." State v. Phillips, 354 Or 598, 606, 317 P3d 236 (2013).

Area(s) of Law:
  • Criminal Law

State v. Chavez-Meza

"The burden is on the state to 'overcome [the presumption that confessions are involuntary] by offering evidence affirmatively establishing that the confession was voluntary.'" State v. Jackson, 364 Or 1, 21, 430 P3d 1067 (2018).

Area(s) of Law:
  • Criminal Law

State v. Glasby

A court may only deny an invocation of the right to self-representation if, on the record, the court states how it determined the court’s interests in denying the invocation outweighed the defendant’s right, and a court may deny an invocation for self-representation if it was made unknowingly, involuntarily, equivocally, unclearly, or if it would disrupt the conduct of the trial. State v. Hightower, 361 Or 412, 417, 393 P3d 224 (2017); State v. Fredinburg, 257 Or App 473, 481, 308 P3d 208 (2013), rev den, 354 Or 490 (2013); see also State v. Williams, 288 Or App 712, 713-14, 407 P3d 898 (2017).

Area(s) of Law:
  • Criminal Law

State v. Riekens

"The record must support a nonspeculative inference that there is a causal relationship between the defendant's criminal activities and the victim's economic damages." State v. Akerman, 278 Or App 486, 490, 380 P3d 309 (2016).  

Area(s) of Law:
  • Criminal Law

State v. Rodriguez

The right against self-incrimination must be “invoked on a question-by-question basis,” and may only be waived by the court if the person testifying is given transactional immunity. Or Const, Art I, §12; State v. Tensbusch, 131 Or App 634, 640, 886 P2d 1077 (1994).

Area(s) of Law:
  • Criminal Procedure

State v. Rogers

To establish the mental state of knowingly, the State must show “when defendant made the relevant statements, [he/she/they] knew that [he/she/they] were creating a risk of public inconvenience, annoyance and alarm.” State v. Nelson, 367 or App 621, 626 (2014).

Area(s) of Law:
  • Criminal Law

State v. Senin

A warrantless search for the purpose of discovering evidence of the crime of arrest "may be justified even if the defendant has been removed from the area in which an officer believes that evidence may be located" so long as the "evidence reasonably could be found in that area and the search is otherwise reasonable in time, scope, and intensity." State v. Krause, 281 Or App 143, 146 (2016)

Area(s) of Law:
  • Criminal Procedure

Berrey v. Real Estate Agency

Having a partial ownership interest in the property one is managing does not negate the fact that the management is being done “for another” so as to qualify as professional real estate activity. ORS 696.010(14). The managing member exception only applies to individuals who are a managing member of an LLC managing the property. ORS 696.030(27).

Area(s) of Law:
  • Property Law

Dept. of Human Services v. V. A. R.

To change W’s permanency plan from reunification to placement with a fit and willing relative under ORS 419B.476, the juvenile court was required to determine (1) that DHS made reasonable efforts to reunify W with his mother, and (2) that mother’s progress was not sufficient to allow reunification. Dept. of Human Services v. L.L.S., 290 Or App 132, 137-138, 413 P3d 1005 (2018). “Reasonable efforts” for purposes of ORS 419B.476(2)(a) are “efforts that focus on ameliorating the adjudicated bases for jurisdiction, and that give ‘parents a reasonable opportunity to demonstrate their ability to adjust their conduct and become minimally adequate parents.’” Id.

Area(s) of Law:
  • Juvenile Law

Simi v. LTI Inc.- Lynden Inc.

“Under ORS 656.267, a claimant is required to initiate a new or omitted medical condition claim [when]… (d) ‘an injured worker who believes that a condition has been incorrectly omitted from a notice of acceptance, or that the notice is otherwise deficient, first must communicate in writing to the insurer or self-insured employer the worker’s objections to the notice pursuant to ORS 656.267. The insurer or self-insured employer has 60 days from receipt of the communication from the worker to revise the notice or to make other written clarification in response.’… The claim is then required to be processed pursuant to ORS 656.262(7) [wherein] (c)… ‘If a condition is found to be compensable after claim closure, the insurer or self-insured employer shall reopen the claim for processing regarding that condition.’”

Area(s) of Law:
  • Workers Compensation

State v. Clay

"The legislature did not intend ORS 163.670 to capture a person’s observation of his own sexual abuse of a child or observation of a child’s sexual or intimate parts while sexually abusing or preparing to sexually abuse the child." Rather, "the legislature intended to address conduct committed for the purpose of observation or visual recording."

Area(s) of Law:
  • Criminal Law

State v. Judd

“Except as provided in ORS 136.427, a confession alone is not sufficient to warrant the conviction of the defendant without some other proof that the crime has been committed.” ORS 136.425(2); see also State v. Wenning, 282 Or App 21, 23, 386 P3d 1 (2016), rev den, 360 Or 852 (2017).

Area(s) of Law:
  • Criminal Law

Waldorf v. Premo

"[C]ompetent counsel can make 'tactical choices that backfire, because, by their nature, trials often involve risk.'" Krumacher v. Gierloff, 290 Or 867, 875, 627 P2d 458 (1981).

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

Walter v. Board of Education

"A law that neither burdens a fundamental right nor targets a suspect class will be upheld so long as it bears a rational relation to some legitimate state interest." Romer v. Evans, 517 US 620, 631, 116 S Ct 1620, 134 L Ed 2d 855 (1996).

Area(s) of Law:
  • Administrative Law

Back to Top