Oregon Court of Appeals

Opinions Filed in September 2022

Gould v. Deschutes County

“A LUBA order is unlawful in substance if it represents a mistaken interpretation of the applicable law.” Kine v. Deschutes County, 313 Or App 370, 370-71, 496 P3d 1136 (2021).

Area(s) of Law:
  • Land Use

Roriguez v. Union Pac. R.R. Co.

Summary judgment does not present an opportunity to assert a theory of liability that is not in the pleadings. Permapost Products Co. v. Osmose, Inc., 200 Or App 699, 705 (2005).

Area(s) of Law:
  • Tort Law

State v. C.P.

A victim’s participatory right under the Oregon Constitution does not encompass a right to discovery, a right to present evidence, a right to cross-examine the adjudicated youth, or the power to, in effect, control the prosecution of the case against the youth.

Area(s) of Law:
  • Juvenile Law

State v. Escobar

“[E]yewitness identification evidence . . . must include, at minimum, proof under OEC 602 that the proffered eyewitness has personal knowledge of the matters to which the witness will testify, and proof under OEC 701 that any identification is both rationally based on the witness’s first-hand perceptions and helpful to the trier of fact.” State v. Lawson/James, 352 Or 724 (2012).

Area(s) of Law:
  • Evidence

State v. N. J. D. A.

Before questioning, police must give Miranda warnings to a person who is in full custody or in circumstances that create a setting which judges would and officers should recognize to be compelling.” State v. Roble-Baker, 340 Or 631, 638, 136 P3d 22 (2006).

Area(s) of Law:
  • Criminal Procedure

State v. Powell

The court cannot admit evidence if the proponent’s theory of relevance requires the factfinder to employ propensity reasoning. State v. Skillicorn, 367 Or 464, 479 P3d 254 (2021).

Area(s) of Law:
  • Criminal Procedure

Farnsworth v. Meadowland Ranches, Inc.

Quiet title was properly granted to Plaintiff because Defendant failed to prove the existence of the easement on the merits. Defendant's strongest argument was denied because Defendant did not provide enough evidence to show, "Meadowland engaged in “open and known” acts of public dedication... that would give rise to an implied dedication."

Area(s) of Law:
  • Property Law

Fern Hollow Farms, Inc. v. Linn County

Development rights conferred by an authorization under section 6 of Measure 49 are not subject to “a land use regulation enacted by the state or county that has the effect of prohibiting the partition or subdivision, or the dwelling.” Measure 49, § 6(8).

Area(s) of Law:
  • Land Use

State v. Hamilton

When an issue is not preserved at trial, review of that issue is limited to plain-error review where the error is considered “plain” if the legal point is obvious, not reasonably in dispute, and the error is apparent on the record without the court having to choose among competing inferences. See ORAP 5.45(1); State v. Vanornum, 354 Or 614, 629 (2013). A trial court has “discretionary authority to revoke probation” based on the “finding of a new crime or other violation of the conditions of probation.” State v. Kelemen, 296 Or App 184 (2019).

Area(s) of Law:
  • Criminal Law

Allison v. Dolich

Under ORS 659A.030(1), unlawful employment practices occur when “any person, whether an employer or an employee, [] aid[s], abet[s], incite[s], compel[s], or coerce[s] the doing of any [forbidden acts].”

Area(s) of Law:
  • Employment Law

Department of Human Services v. H.K.

When family reunification is the desired outcome for a permanency hearing, DHS must show it “has made reasonable efforts for the ward to safely return home.” ORS 419B.476(2)(a). It was not sufficient that DHS only facilitated one in-person family therapy session with the mother.

Area(s) of Law:
  • Family Law

Garcia-Ascencio v. Gonzalez

A finding that the guidelines support amount is “unjust or inappropriate” is necessary before a court is authorized to consider rebuttal factors and deviate from the guidelines. St. Sawer and St. Sawer, 196 Or App 175 (2004).

Area(s) of Law:
  • Family Law

State v. Allen

(1) “[T]he ‘knowingly’ culpable mental state does not apply to the injury element.” State v. Owen, 369 Or 288, 321 (2022). (2) “[T]he result element—physical injury—in the crime of second-degree assault carries, at a minimum, a culpable mental state of criminal negligence and…a trial court errs when it fails to instruct the jury that a defendant must act with a culpable mental state as to the element of causing physical injury. Owen, 369 Or at 321-23.

Area(s) of Law:
  • Criminal Law

State v. Givens

“ORS 161.370(10) provides for discharge of a defendant who “remains committed” under ORS 161.370(9)." Therefore, under ORS 161.370(13) the trial court is not required to dismiss the refiled charges if a defendant is not presently committed to the state hospital.

Area(s) of Law:
  • Criminal Law

State v. Wallace

“The ability to consent consists of two related concepts: (1) understanding the nature of sexual conduct and (2) exercising judgment and making choices based on that understanding." Reed, 339 Or at 244.

Area(s) of Law:
  • Criminal Law

Klamath Irrigation District v. Oregon Water Resources Dept.

Under ORCP 29 B, if, after weighing whether the absent party would be subject to a prejudicial judgment, the extent a prejudicial judgment can be avoided, whether a judgment would be adequate, and whether the Plaintiff has another adequate remedy available, a judgment cannot be made “in equity and good conscience,” the party would be indispensable.

Area(s) of Law:
  • Water Rights

Portland Fire Fighters' Assn. v. City of Portland

Waiving a statutory right requires an “intentional relinquishment or abandonment of a known right or privilege… demonstrated by a clear, unequivocal, and decisive act of the party showing such a purpose.” Waterway Terminals v. P. S. Lord, 242 Or 1, 26, 406 P.2d 556 (1965).

Area(s) of Law:
  • Contract Law

State v. Dearmitt

ORS 136.765 provides that a sentencing court imposing an upward departure sentence cannot “rely on aggravating facts . . . not included either in the indictment or in written notice to the defendant.” State v. Davilla, 280 Or App 43, 62, 380 P3d 1003 (2016).

Area(s) of Law:
  • Sentencing

State v. Martin

“[T]he doctrine of the law of the case is inapplicable in light of new facts or evidence bearing on the legal issue in question.” State ex rel. Orbanco Real Estate Serv. v. Allen, 720 P.2d 365 (1986).

Area(s) of Law:
  • Evidence

State v. McCormack/Senter

The imposition of OAR 635-041-0025(3) to restrict the use of gill nets by treaty fishers fishing in usual and accustomed sites may be beneficial to its conservation interest but not necessary.

Area(s) of Law:
  • Tribal Law

State v. Williams

For testimony to be admissible, “[i]t must be relevant OEC 401; it must possess sufficient indicia of scientific validity and be helpful to the jury, OEC 702; and its prejudicial effect must not outweigh its probative value, OEC 403.” State v. Southard, 218 P.3d 104 (Or. 2009).

Area(s) of Law:
  • Evidence

State v. Yaeger

Overruling Gardner, the Supreme Court stated, “the trial court had not determined whether, despite the ultimate validity of the warrant, the State would have inevitably discovered the challenged evidence absent the unlawful seizure of the defendant's residence”. State v. DeJong, 368 Or 640, 497 P3d 710 (2021).

Area(s) of Law:
  • Criminal Law

Unit Owners of Cornell Meadows Condo v. Jensen

“[M]oney judgment for unpaid assessments may be maintained without foreclosing or waiving the lien securing the claim for unpaid assessments. A judgment entered on the action does not extinguish the lien.” ORS 100.450(4). This amended statute and the pre-amendment statute do not prevent foreclosure of a lien if a prior personal judgment was made.

Area(s) of Law:
  • Property Law

Back to Top