Oregon Court of Appeals

Opinions Filed in September 2021

State v. Gocan

The Oregon Supreme Court has announced that “a ‘proper occasion’ to give the witness-false-in-part instruction exists when, considering the testimony and other evidence a party has brought to the court’s attention in support of the requested instruction, the trial court concludes that sufficient evidence exists for the jury to decide that at least one witness consciously testified falsely and that the false testimony concerns a material issue.” State v. Payne, 366 Or 588, 600, 468 P3d 445 (2020).

Area(s) of Law:
  • Evidence

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

Under ORS 419B.337, ORS 419B.387, and case law, a court may order a psychological evaluation of a parent if the following are true after an evidentiary hearing: (1) “the evaluation is rationally related to the jurisdictional findings,” (2) evaluation is a “predicate component to the determination of treatment and training,” (3) treatment or training is needed to “ameliorate the jurisdictional findings or to facilitate the child’s return,” and (4) “the parent’s participation” in the treatment or training is “in the best interests of the child.”  See State ex rel Juv. Dept. v. G. L., 220 Or App 216, 224, 185 P3d 483, rev den, 345 Or 158 (2008) (allowing trial court to order psychological evaluation under ORS 419B.337(2)).

Area(s) of Law:
  • Juvenile Law

Mooney v. Oregon Health Authority

We long have held that the repeal or replacement of an administrative rule means an ORS 183.400 challenge seeking to invalidate the displaced rule is moot. See Reid v. DCBS, 235 Or App 397, 401, 232 P3d 994 (2010) (so holding); see also Hay v. Dept. of Transportation, 301 Or 129, 133-34, 719 P2d 860 (1986) (expiration of rule mooted ORS 183.400 challenge to the rule).

Area(s) of Law:
  • Administrative Law

State v. Camirand

“The [Supreme Court] observed that references to facts outside the record can be prejudicial in two ways: First, they encourage the jury to speculate about evidence beyond that presented at trial; and, second, they ‘provide a preemptive explanation for the state’s failure to present evidence that the jury might expect it to present.’”State v.  Banks, 367 Or 574, 481 P3d 1275 (2021).

Area(s) of Law:
  • Criminal Law

State v. Center

As the Supreme Court has explained, “the purpose of the common-law rule and the statute that now embodies it,” i.e., ORS 136.425(1), “is to exclude potentially false—and thus unreliable—confessions from evidence.” State v. Powell, 352 Or 210, 222, 282 P3d 845 (2012).

Area(s) of Law:
  • Criminal Law

State v. Hubbell

An “attempt” under ORS 161.405(1) requires an act that is “strongly corroborative of the actor’s criminal purpose” such that it “(1) advance[s] the criminal  purpose charged and (2) provide[s] some verification of the existence of that purpose.” State v.  Walters, 311 Or 80, 85, 804 P2d 1164, cert den, 501 US 1209 (1991)

Area(s) of Law:
  • Criminal Procedure

State v. Wulf

ORS 811.365(1)(a) prohibits U-turns in any intersection with an electrical traffic control signal (unless “posted otherwise,” which was not the case here).

Area(s) of Law:
  • Criminal Law

Indian Ridge I, LLC v. Lenahan

Lis Pendens can be filed to notify of a lawsuit “in which the title to or any interest in or lien upon real property is involved, affected, or brought in question.” ORS 93.740.

Area(s) of Law:
  • Property Law

Partsafas and Partsafas

“Any decision to set child support above the guidelines cap must, at a minimum, be based primarily on the child’s needs, as set out in specific supporting findings.” Stringer v. Brandt, 128 Or App 502, 507, 877 P2d 100 (1994). Disparity in income cannot serve as a reason for rebutting the presumptive amount because relative incomes of the parents is a factor in determining the presumptive amount in the first place. Larkin and Larkin, 146 Or App 310, 313, 932 P2d 115 (1997).

Area(s) of Law:
  • Family Law

Schneider v. Water Resources Dept.

Pursuant to Gafur v. Legacy Good Samaritan Hospital and Medical Center, 344 Or 525, 185 P3d 446 (2008), the courts will give deference to the plausible interpretations of a statute by a government agency, so long as that interpretation is not inconsistent with “the wording of the rule, its context, or any other source of law.”

Area(s) of Law:
  • Administrative Law

State v. A. R. H.

When determining whether a youth failed to meet the burden of proof under ORS 163A.030, an appellate court must determine whether “no court could find itself unpersuaded that” a youth is rehabilitated and no longer presents a threat to public safety. State v. A. L. M., 305 Or App 389, 404–05, 469 P3d 244, rev den, 367 Or 218 (2020).

Area(s) of Law:
  • Juvenile Law

State v. Gaona-Mandujano

ORS 137.540(2) gives the trial court discretion to impose any special conditions of probation “that are reasonably related to the crime of conviction or the needs of the probationer for the protection of the public or reformation of the probationer, or both.”

Area(s) of Law:
  • Criminal Law

State v. Kulick

To prove constructive possession, the state must prove that a defendant knowingly exercised control over, or had the right to control, the contraband.” State v. Evans, 161 Or App 86, 89, 983 P2d 1055 (1999). However, a defendant’s “mere presence in the proximity of a controlled substance is not a sufficient basis from which to draw an inference of constructive possession.” State v. Fry, 191 Or App 90, 93, 80 P3d 506 (2003).

Area(s) of Law:
  • Criminal Procedure

State v. Powe

Under ORS 163.275(1), coercion is the use of the fear of a specified consequence to “influence or persuade a victim to alter his or her course of conduct—to do something that the victim otherwise would not have done or to not do something which the victim otherwise would have done.” State v. Pedersen, 242 Or App 305, 312, 255 P3d 556, rev den, 351 Or 254 (2011).

Area(s) of Law:
  • Criminal Law

State v. Sylva

“A defendant is the movant in seeking to have [their] conviction set aside under ORS 137.225, and it is [their] burden to show that [they meet] the criteria of that statute.” State v. Langan, 301 Or 1, 5, 718 P2d 719 (1986).

Area(s) of Law:
  • Criminal Procedure

Willms v. AmeriTitle, Inc.

[T]he statute of limitations for civil ORICO claims under ORS 166.725(11)(a) is five years, but the action can be brought either five years “after the conduct in violation [of ORICO] terminates” or within five years after the action “accrues.”

Area(s) of Law:
  • Civil Law

Bean v. Cain

Oregon law assumes that it is reasonable for a petitioner to rely on his attorney to timely file, meeting their “most basic professional obligations.” Winstead v. State of Oregon, 287 Or App 737, 740 (2017).

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

Birchall v. Miller

Under Nordbye v. BCRP/GM Ellington, 271 Or App 168 (2015), a "potential claim for prevailing-party based attorney fees" cannot support a forcible entry and detainer case where there is no longer a live dispute about possessory rights.

Area(s) of Law:
  • Landlord Tenant

Callais v. Henricksen

To recover attorney’s fees under ORS 20.080(1), a plaintiff must satisfy four requirements: (i) the plaintiff must file an action pleading damages of $10,000 or less; (ii) the plaintiff must prevail in that action; (iii) the plaintiff must issue written demand on the defendant for payment of their claim at least thirty days prior to commencing the action; and (iv) the judgment obtained by the plaintiff must be greater than any pre-filing settlement offer made by the defendant. Johnson v. Swaim, 343 Or 423, 172 P3d 645 (2007).

Area(s) of Law:
  • Tort Law

Dancingbear v. SAIF

ORS 656.383(1) provides that a workers compensation claimant’s attorney is entitled to a fee award if the attorney “is instrumental in obtaining temporary disability compensation benefits [under ORS 656.268].

Area(s) of Law:
  • Workers Compensation

Hejazi v. Gifford

ORS 30.643(1) applies to all fee waivers and deferrals in civil actions brought by an “adult in custody. . . against a public body.” When a plaintiff fails to apply the proper statute in their briefing, the rules of appellate procedure require the court to affirm. Smith v. Dept. of Corrections, 314 Or App 1, 3 (2021).

Area(s) of Law:
  • Appellate Procedure

Kyei v. Division of Child Support

An order terminating existing license suspensions stemming from a child support judgment does not prevent future child support enforcement orders.

Area(s) of Law:
  • Family Law

Oregon Tech AAUP v. Oregon Institute of Technology

Under the Public Employee Collective Bargaining Act (PECBA), “[p]ublic employees have the right to form, join and participate in the activities of labor organizations of their own choosing for the purpose of representation and collective bargaining with their public employer on matters concerning employment relations.” ORS 243.662.

Area(s) of Law:
  • Employment Law

State v. Anderson

Under OEC 608, “split reputation evidence is admissible” because it “permits reputation evidence for ‘truthfulness or untruthfulness.’"

Area(s) of Law:
  • Evidence

State v. Burnett

The Court must affirm the conviction notwithstanding the omission of a concurrence instruction if there is “little likelihood that the error affected the verdict.” State v. Ashkins, 357 Or 642, 660 (2015).

Area(s) of Law:
  • Criminal Law

State v. Delaney

“A defendant cannot establish substantial prejudice [under ORS 132.560(3)] ‘if the evidence pertaining to the separate charges is “mutually admissible in separate trials or is sufficiently simple and distinct to mitigate the dangers created by joinder[.]”’” State v. Tidwell, 259 Or App 152, 155, 313 P3d 345 (2013), rev den, 355 Or 142 (2014).

Area(s) of Law:
  • Criminal Procedure

State v. K. M.

An involuntary civil commitment requires more than the mere diagnosis of a mental disorder or threats to others. State v. C. H., 306 Or App 63, 67, 473 P3d 60 (2020). The State must prove, by clear and convincing evidence, “that actual future violence is highly likely.” State v. M. A., 276 Or App 624, 629, 371 P3d 495 (2016).

Area(s) of Law:
  • Civil Commitment

State v. Larson

“[W]hen it is clear from the record that a condition of probation is to take effect immediately, the validity of the condition does not depend on entry of the judgment.” State v. Quackenbush, 116 Or App 453, 455-56, 841 P2d 671 (1992).

Area(s) of Law:
  • Criminal Procedure

State v. Simmons

Under State v. Nicholson, 282 Or App 51 (2016), “[a] defendant who acts based on a good faith belief that a judicial order has been dismissed cannot be deemed to have acted [willfully]” within the meaning of ORS 33.015(2).

Area(s) of Law:
  • Criminal Procedure

Braymen v. Water Resources Dept.

Courts may consider extrinsic evidence when assessing whether a stipulated judgment is ambiguous. Van Atta v. Stephanie Fry, Inc., 295 Or App 465, 473, 434 P3d 575 (2018). Voluntarily engaging in conduct that violates the terms of a judgment, with knowledge of the terms, amounts to contempt. Chang v. Chun, 305 Or App 144, 152, 470 P3d 410 (2020).

Area(s) of Law:
  • Contract Law

Canales-Robles v. Laney

An untimely petition for post-conviction relief may be excused if, within the two-year limitation period the applicable law is established, and the petitioner could have reasonably asserted the applicable legal ground for relief.

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

Canales-Robles v. Laney

ORS 138.510(3) provides: “A petition pursuant to ORS 138.510 to 138.680 must be filed within two years of the [date that the conviction became final], unless the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition.”

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

Chaimov v. Dept. of Admin. Services

The lawyer-client privilege, articulated in OEC 503, applies to public entities. Including communications between the Department of Administrative Services and the Office of the Legislative Counsel.

Area(s) of Law:
  • Administrative Law

Chaimov v. Dept. of Admin. Services

As the Supreme Court said in Crimson Trace Corp. v. Davis Wright Tremaine LLP, 355 Or 476, 487-88, 326 P3d 1181 (2014), although the statutory privilege “requires the existence of an ‘attorney-client relationship’ in some sense” (emphasis added), the existence of a sufficient relationship for the privilege is determined exclusively by reference to the statutory privilege rule itself—not by reference to other sources of law defining an attorney-client relationship.

Area(s) of Law:
  • Professional Responsibility

City of Portland v. Gonzalez

All investigative activities conducted during a traffic stop have subject-matter and durational limitations, officers’ activities during a traffic stop must be reasonably related to the purpose of the stop or supported by an independent constitutional justification.

Area(s) of Law:
  • Criminal Procedure

City of Portland v. Gonzalez

Officers’ activities during a traffic stop must be reasonably related to the traffic stop or be supported by an independent constitutional justification.

Area(s) of Law:
  • Criminal Procedure

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

ORS 419B.521 provides that a court may issue a TPR if (1) the parent is unfit by conduct or condition seriously detrimental to the ward, (2) integration of the child into the home is improbable in a reasonable amount of time, and (3) if termination is in the best interests of the child.

Area(s) of Law:
  • Family Law

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

To terminate parental rights under ORS 419B.504, a juvenile court must find, by clear and convincing evidence, that (i) the parent is unfit by reason of conduct or condition seriously detrimental to the child; (ii) that integration of the child into the home of the parent or parents is improbable within a reasonable amount of time due to conduct or conditions not likely to change, and; (iii) that termination is in the child’s best interest.

Area(s) of Law:
  • Family Law

Dept. of Human Services v. D.E.A.

A juvenile court may change a child’s permanency plan away from reunification only if DHS proves, among other things, that DHS made “active efforts” to make it possible for the child to be reunited with the parent and, notwithstanding those efforts, the parent’s progress was insufficient to make reunification possible. Dept. of Human Services v. D. L. H., 251 Or App 787, 798, 284 P3d 1233, adh’d to as modified on recons, 253 Or App 600, 292 P3d 565 (2012), rev den, 353 Or 445 (2013).

Area(s) of Law:
  • Juvenile Law

Diens v. Bonome

“Under the discovery rule, the statute of limitations began to run on petitioner's claim when petitioner knew 'or in the exercise of reasonable care should have known facts which would make a reasonable person aware of a substantial possibility that each of the three elements of a claim (harm, causation, and tortious conduct) exist[ed].' McLean, 189 Ore. App. at 424-25.

Area(s) of Law:
  • Trusts and Estates

Laack v. Botello

In accordance with Phan, the striking of pleadings and the dismissal of claims as a sanction is not within the court’s authority under ORS 1.010 and must be statutorily authorized. 185 OR App at 633.

Area(s) of Law:
  • Civil Procedure

Laack v. Botello

Under Phan v. Morrow, 185 Or App 628, 633, 60 P3d 1111 (2003), “the striking of pleadings and the dismissal of claims as a sanction is not within the court’s authority under ORS 1.010 and must be statutorily authorized.”

Area(s) of Law:
  • Civil Procedure

Lufkin v. Dept. of Human Services

“The general rule in Oregon is that, although waivers of constitutional and statutory rights may be expressed through  contract  terms,  those  terms  must  clearly  indicate an intention to renounce a known privilege or power.” Assn. of Oregon Corrections Emp. v. State of Oregon, 353 Or 170, 295 P3d 38 (2013).

Area(s) of Law:
  • Contract Law

Lufkin v. DHS

“The general rule in Oregon is that, although waivers of constitutional and statutory rights may be expressed through contract terms, those terms must clearly indicate an intention to renounce a known privilege or power.” Assn. of Oregon Corrections Emp. v. State of Oregon, 353 OR 170, 183, 295 P3d 38 (2013) (internal quotation marks omitted).

Area(s) of Law:
  • Contract Law

Nelson v. Liberty Ins. Corp

For purposes of estoppel by silence, “the duty to speak does not arise until the party against whom estoppel is urged knows or should know that the failure to speak will likely mislead the other party to act to his or her detriment.” Pfaendler, 195 Or App at 570.

Area(s) of Law:
  • Property Law

Nelson v. Liberty Mutual Insurance Company

Under Pfaendler v. Bruce, 195 Or App 561 (2004), a duty to speak giving rise to estoppel by silence develops when “the party to speak against whom estoppel is urged knows or should know that the failure to speak will likely mislead the other party to act to his or her detriment.”

Area(s) of Law:
  • Contract Law

NW Metals, Inc. v. DMV

A dismantler may face penalties if they “[a]cquire[] a motor vehicle or major component part without obtaining a certificate of sale.” ORS 822.137(2)(a).

Area(s) of Law:
  • Administrative Law

NW Metals, Inc. v. Driver & Motor Vehicle Servs. Div.

A single legal entity cannot take physical possession of a vehicle from itself, nor can it take possession of a vehicle's ownership record from itself. See OAR 735-152-0000(1).

Area(s) of Law:
  • Business Law

Padilla v. State Farm Mutual Automobile Ins. Co.

ORS 742.526(1) governs the “excess” relationship between multiple applicable insurance policies (“The personal injury protection benefits with respect to * * * “(b) Passengers injured while occupying the insured motor vehicle shall be primary.)

Area(s) of Law:
  • Insurance Law

Padilla v. State Farm Mutual Automobile Ins. Co.

ORS 742.524(1)(b) provides that PIP benefits are subject to a maximum payment period “in the aggregate of 52 weeks.” Black’s Law Dictionary states that “aggregate” means “to collect into a whole.”

Area(s) of Law:
  • Insurance Law

Reynolds v. Dept. of Human Services

Under ORS 183.484(4), an agency may withdraw a final order “in an other than contested case” for reconsideration at any time after the filing of a petition for judicial review, before the date set for hearing, without permission from the court.

Area(s) of Law:
  • Civil Procedure

Sherertz v. Brownstein, Rask, Sweeney, Kerr, Grim, Desylvia, & Hay, LLP

Under Hale v. Groce, 304 Or 281, an attorney is liable for economic losses to a third party beneficiary only where the attorney made “an actual promise to [a] client * * * to achieve a particular objective that will benefit [the] specified third party.”

Area(s) of Law:
  • Tort Law

Skinner and Skinner

ORS 82.010(2)(c), which refers to prejudgment interest, applies only to some judgments, spousal support judgments do not accrue prejudgment interest.

Area(s) of Law:
  • Family Law

State v. Allen

According to Savinskiy, the Article 1, section 11 protections do not attach to police investigation into “new criminal activity in progress.” State v. Savinskiy, 364 Or 802, 411 P3d 557, adh’d to as modified on recons, 365 Or 463, 445 P3d 307 (2019).

Area(s) of Law:
  • Criminal Procedure

State v. Allen

Under Savinskiy, “the Article I, section 11, right to counsel on pending charges does not guarantee that the State will provide notice to a defendant’s attorney before questioning the Defendant about new, uncharged and ongoing criminal conduct.”

Area(s) of Law:
  • Criminal Procedure

State v. Craig

ORS 137.719 provides that if a defendant has been sentenced for two prior felony sex crimes, the presumptive sentence is life without the possibility of parole.

Area(s) of Law:
  • Sentencing

State v. Craig

Convictions for felony sex crimes must result in a sentence to count towards a defendant’s eligibility for life without parole under ORS 137.719(1). Gordon v. Hall, 232 Or App 174, 221 P3d 763 (2009).

Area(s) of Law:
  • Sentencing

State v. D.F.U.

To preserve a challenge on appeal, an appellant must raise the issue before the trial court with enough specificity to allow the court to consider the issue and rule on it.

Area(s) of Law:
  • Evidence

State v. D. F. U.

“To preserve a challenge to the legal sufficiency of the evidence, an appellant must raise the issue before the trial court with enough specificity to allow the court to consider the issue and rule on it." See, e.g., State v. Barboe, 253 Or App 367, 373-74 (2012), rev den, 353 Or 714 (2013).

Area(s) of Law:
  • Civil Commitment

State v. Hsieh

When dealing with animal neglect, exigent circumstances exist when “a person fails to provide the ‘minimum care’ required by statute, ORS 167.310(9), and the failure results in imminent ‘physical injury,’ ORS 167.310(10), or imminent ‘serious physical injury,’ ORS 167.310(13).”

Area(s) of Law:
  • Criminal Law

State v. Hsieh

Exigency exists when a person fails to provide the “minimum care” required by statute, and that failure results in imminent physical injury; an officer’s beliefs must be grounded in specific and articulable facts.

Area(s) of Law:
  • Criminal Procedure

State v. Kiesau

“The rule against prosecutorial vouching—i.e., prosecutors giving their personal opinions on the credibility of witnesses—is rooted in the principle “that counsel’s credibility opinions are not evidence and are sometimes based on facts not in evidence—thus, they tend to distract the jury from its duty to base its verdict on the evidence at trial.” State v. Sperou, 365 Or 121, 129, 442 P3d 581 (2019).

Area(s) of Law:
  • Criminal Procedure

State v. Kiesau

It is impermissible vouching for a prosecutor to give their personal opinion of the credibility of their witnesses because the opinions are typically based on facts not in evidence which distracts the jury. See State v. Serous, 365 Or 121, 129 (2019).

Area(s) of Law:
  • Evidence

State v. Kindred

Behavior means some legal conformity with the public law and cannot include social conformity. State v. Langan, 301 Or 1, 718 P2d 719 (1986).

Area(s) of Law:
  • Criminal Procedure

State v. Kindred

A trial court may deny a qualified person’s request to set aside a conviction only if it determines (i) that the person violated public law after their date of conviction and; (ii) that the violation warrants denial of the request. State v. Larson, 268 Or App 802, 344 P3d 59 (2015).

Area(s) of Law:
  • Criminal Procedure

State v. Larson

ORS 137.123 generally bars consecutive sentences except under certain circumstances.

Area(s) of Law:
  • Sentencing

State v. Larson

The Court must have evidence that the defendant intended to commit multiple criminal acts, typically shown by temporal or qualitative deference to impose consecutive sentences. State v. Porter, 313 Or App 565 (2021).

Area(s) of Law:
  • Sentencing

State v. Shelby

Miranda warnings are required before questioning when police question a defendant under circumstances that Miranda warnings were intended to counteract.

Area(s) of Law:
  • Criminal Procedure

State v. Shelby

[P]olice officers must provide Miranda-like warnings to a defendant who is in custody or in compel-ling circumstances prior to questioning. See State v. Roble-Baker, 340 Or 631, 638, 136 P3d 22 (2006). In determining whether a defendant is subject to compelling circumstances, the court examines ‘whether the officers created the sort of police-dominated atmosphere that Miranda warnings were intended to counteract.’ Id. At 641.”

Area(s) of Law:
  • Criminal Law

State v. Threlkeld

A witness is qualified as an expert when the witness has developed superior knowledge based on experience, and the competency of the expert must be assessed in relation to the specific subject about which the expert is asked.

Area(s) of Law:
  • Evidence

State v. Threlkeld

“[A]n expert on a given subject is a person who ‘has acquired certain habits of judgment based on experience of special observation that enable[] him or her to draw from the facts inferences that are uniquely beneficial to the [factfinder].” Mall v. Horton, 292 OR App 319, 324, 423 P3d 730, rev den, 363 Or 744 (2018).

Area(s) of Law:
  • Criminal Law

W.A.S. v. Teacher Standards and Practices Comm.

The appearance of unfairness, without more, is insufficient to establish a due process violation in an agency proceeding. To prevail, the plaintiff must demonstrate “actual bias on the part of the decision-maker” or some other actual unfairness. Shicor v. Board of Speech Language Path. and Aud., 291 Or App 369, 420 P3d 638 (2018).

Area(s) of Law:
  • Administrative Law

W. A. S. v. Teacher Standards and Practices Comm.

In an agency proceeding, lacking the appearance of fairness is not enough to reverse, a petitioner must show actual bias by the decision maker.

Area(s) of Law:
  • Administrative Law

Friends of Columbia Gorge v. Energy Fac. Siting Coun.

Orders denying requests for contested case proceedings are final orders on the contested case requests. ORS 183.310(b)(6). A request for a contested case proceeding is not itself a contested case; they are “other than contested cases.” ORS 183.310(2)(a); ORS 183.484.

Area(s) of Law:
  • Civil Procedure

Hersey v. Leon

Oregon law states that “[a]n appellant bears the burden of providing a record sufficient to demonstrate that error occurred.” Ferguson v. Nelson, 216 Or App 541 (2007).

Area(s) of Law:
  • Property Law

Lemus v. Potter

An amendment to substitute the correct defendant for the named defendant in an automobile accident case changes the party against whom the claim is asserted and relates back only if all three conditions set out in ORCP 23 C are satisfied. Hamilton v. Moon, 130 Or App 403, 405, 882 P2d 1134, rev den, 320 Or 492 (1994).

Area(s) of Law:
  • Civil Procedure

Mouktabis v. Amarou

A guardian ad litem is not a party to an action based solely upon his or her guardian ad litem status. Christman v. Scott, 183 Or 113, 117-18, 191 P2d 389 (1948). Non-attorney guardians ad litem who appear pro se are engaging in the unlawful practice of law; only members of the Oregon State Bar may appear on behalf of another. ORS 9.160(1); ORS 9.320.

Area(s) of Law:
  • Juvenile Law

Mouktabis v. Amarou

A guardian ad litem may be but is not required to be an attorney, they do not “step into the shoes” of the represented person for all purposes, nor do they become an attorney by serving as guardian ad litem.

Area(s) of Law:
  • Appellate Procedure

Nevius v. Palomares

To determine whether plaintiff stated a claim, there must be allegations which are legally sufficient to establish the existence of a justiciable controversy, a challenge becomes moot when a court decision will not have a practical effect on the rights of parties.

Area(s) of Law:
  • Civil Procedure

Nevius v. Palomares

The voluntary cessation doctrine renders a case moot only when it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. Already, LLC v. Nike, Inc., 568 US 85, 91, 133 S Ct 721 (2013).

Area(s) of Law:
  • Property Law

Sexton v. Sky Lakes Md. Center

An injury is not compensable unless the injury is the major contributing cause of the consequential condition; or if an otherwise compensable injury combines at any time with a preexisting condition to cause or prolong disability or a need for treatment it is only compensable is the otherwise compensable injury is the major contributing cause of disability.

Area(s) of Law:
  • Workers Compensation

Sexton v. Sky Lakes Medical Center

“[R]equiring a previous acceptance of a preexisting condition that [an] employer determined not to be compensable would be illogical, even in the case of a new or omitted condition, because the ‘employer would be required to accept a claim for which no benefits are due.’” Tektronix, Inc. v. Nazari, 117 Or App 409, 844 P2d 258 (1992), adh’d to as modified on recons, 120 Or App 590, rev den, 318 Or 27 (1993).

Area(s) of Law:
  • Workers Compensation

State v. Bonome

Oregon law demands that a waiver of counsel be done “knowingly and intelligently.” Typically, this standard is met when the court conducts a colloquy with the defendant explaining the risks of proceeding without representation. Additionally, under Ailes v. Portland Meadows, Inc., the court can exercise its discretion to correct plain errors that serve the “ends of justice.”

Area(s) of Law:
  • Criminal Law

State v. Doyle

In Ramos, the United States Supreme Court held that the Sixth Amendment requires a unanimous jury verdict to convict.

Area(s) of Law:
  • Constitutional Law

State v. Edgtton

Under State v. Hightower, 361 Or 412, 393 P3d 224 (2017), the court must make a record reflecting the competing interests of a defendant and the court before denying a defendant’s request to proceed pro se.

Area(s) of Law:
  • Constitutional Law

State v. Fitzgerald

For an error to be considered on appeal, it must be preserved. See Peeples v. Lampert, 345 Or 209, 219-21 (2008).

Area(s) of Law:
  • Criminal Law

State v. Fitzgerald

The ability to appeal a trial court’s ruling rests on the whether the issue was preserved at trial.

Area(s) of Law:
  • Criminal Procedure

State v. Lebanno

“In the formation of probable cause, the stacking of inferences to achieve probable cause is impermissible.” State v. Goennier, 291 Or App 694, 699, 422 P3d 391, rev den, 363 Or 481 (2018).

Area(s) of Law:
  • Criminal Law

State v. Lebanno

Arrests must be supported by probable cause, probable cause is when an officer subjectively believes that a crime has been committed and the person arrested has committed it, subjective belief must be objectively reasonable.

Area(s) of Law:
  • Criminal Procedure

State v. Lipka

To determine whether a warrantless search is lawful, it must be “reasonable to believe that evidence reasonably related to the crime of arrest could be concealed in the location being searched.” State v. Hernandez, 299 Ore. App. 544, 550-51 (2019).

Area(s) of Law:
  • Criminal Procedure

State v. Lipka

“The test for validity of a search incident to arrest is the reasonableness of the search in light of the circumstances of the particular case.” State v. Hernandez, 299 Or App 544, 551, 449 P3d 878 (2019), rev den, 366 Or 292 (2020).

Area(s) of Law:
  • Criminal Law

State v. Martin

Under State v. Jackson, 268 Or App 139, a person is unconstitutionally seized when an officer communicates to the person that they are the subject of an investigation “that could result in the person’s citation or arrest at that time and place” without reasonable suspicion that the person violated the law.

Area(s) of Law:
  • Criminal Procedure

State v. Ritter

Under State v. Cannon, 299 Or App 616 (2019), probable cause to search one device for child pornography does not categorically extend to other devices owned by the same individual.

Area(s) of Law:
  • Criminal Procedure

State v. Vasquez-Gonzalez

It is the State’s burden to show that a defendant “knowingly, intelligently, and voluntarily waived his Miranda rights.” State v. Ward, 367 Or 188, 191, 475 P3d 420 (2020). The knowing and intelligent inquiry “focuses primarily on a defendant’s state of mind.” State v. Norgren, 287 Or App 165, 169, 401 P3d 1275 (2017), rev dismissed, 363 Or 40 (2018).

Area(s) of Law:
  • Criminal Law

Walton v. Neskowin Regional Sanitary Authority

A six-year statute of limitations applies to inverse condemnation claims and the statute beings to run when the physical taking occurs.

Area(s) of Law:
  • Property Law

Walton v. Neskowin Regional Sanitary Authority

Under ORS 12.080, takings claims have a six-year statute of limitations; the statute of limitations begins to run when the physical occupation begins. Suess Builders v. City of Beaverton, 294 Or 254, 268, 656 P2d 306 (1982); The Foster Group, Inc. v. City of Elgin, Oregon, 264 Or App 424, 442, 332 P3d 354 (2014).

Area(s) of Law:
  • Land Use

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