Oregon Court of Appeals

2022

January 19 summaries

Antoine v. Taylor

To obtain relief… a post-conviction petitioner must show ‘that counsel failed to exercise reasonable professional skill and judgment, and that the 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

Dept. of Human Services v R. D.

The Department of Human Services has the burden of proof to show a connection between a parent’s risk-causing conduct and harm to the children, and that the risk is current, not speculative. Dept. of Human Services v. C. J. T., 258 Or App 57, 61–62, 308 P3d 307 (2013).

Area(s) of Law:
  • Juvenile Law

Dept. of Hum. Servs. v. N.S.C

The Department of Human Services (DHS) and juvenile court relied on ORS 419B.476 which says “’if the court determines that further efforts will make it possible for the ward to safely return home within a reasonable time,’ the court may ‘order that the parent participate in specific services for a specific period of time and make specific progress within that period of time.’”

Area(s) of Law:
  • Juvenile Law

Gibson v. ESIS

“[W]hether an agency’s ultimate conclusions from its findings of fact are supported by substantial reason turns on whether the agency’s order supplies a rational connection between the facts and the legal conclusions it draws from them such that the conclusions are sufficiently reviewable by an appellate court.” United Academics of OSU, 315 Or App at 355-56.

Area(s) of Law:
  • Workers Compensation

Michael v. Pugel

ORCP 71 B(1)(a) allows a court to relieve a party or legal representative from a judgment for: mistake, inadvertence, surprise, or excusable neglect.

Area(s) of Law:
  • Civil Procedure

State v. F. T.

To determine whether an issue is “likely to evade review,” the question is not whether a person in youth’s same circumstances would also fail to obtain appellate review, but “whether the general type or category of challenge at issue is likely to evade being fully litigated.” Eastern Oregon Mining Association v. DEQ, 360 Or 10, 17, 376 P3d 288 (2016)

Area(s) of Law:
  • Juvenile Law

State v. Leers

To obtain a conviction under ORS 165.572(1) for interference with making a report, the state must prove three elements: (1) that the defendant took an action—removing, damaging or interfering with a telephone; (2) that the action “had the effect of preventing or hindering another person from making a report to 9-1-1”; and (3) that the defendant did so intentionally. 259 Or App at 40.

Area(s) of Law:
  • Criminal Procedure

Twigg v. Opsahl

Under ORS 18.775, a court may find a garnishee liable for an amount equal to the value of unreported garnishable property held by the garnishee at the time of garnishment. According to ORS 18.615, “garnishable property” includes “monetary obligations owing to the debtor that are then in existence.”

Area(s) of Law:
  • Bankruptcy Law

Albrecht v. Emmert

“ORCP 68 governs the pleading, proof and award of attorney fees in all cases.” Anderson v. Dry Cleaning To-Your-Door, 249 Or App 104, 108, 275 P3d 181 (2012).

Area(s) of Law:
  • Attorney Fees

State v. Bales

After an appellate court remands based on an erroneous trial-court ruling, a trial court must not limit itself to considering whether it might again rule similarly (but on a permissible basis), but must also consider what effect its erroneous ruling had at the time it was made and whether the evidentiary record or the parties’ arguments might have developed in a materially different way at that time had the trial court not erred. See State v. Hightower, 368 Or 378, 491 P3d 769 (2021).

Area(s) of Law:
  • Criminal Law

State v. Street

Conduct that puts multiple persons at risk can support separate convictions under ORS 161.067(2). Jones v. State of Oregon, 246 Or App 253, 260 n 3, 265 P3d 75 (2011).

Area(s) of Law:
  • Criminal Procedure

State v. Pohle

The “suspension of driving privileges is civil and administrative, rather than criminal, in nature.” State v. Phillips, 138 Or App 468, 471, 909 P2d 882, rev den, 323 Or 114 (1996). Under ORS 801.557, a traffic violation is a “traffic offense that is designated as a traffic violation in the statute defining the offense, or any other offense defined in the Oregon Vehicle Code” punishable by a fine, but not imprisonment.

Area(s) of Law:
  • Criminal Procedure

Watt v. SAIF

Under ORS 656.005(7)(a), an injury is compensable if it arises out of and in the course of employment. The two prongs of the work-connection inquiry—the “arising out of” prong and the “in the course of” prong—must each be evaluated. Norpac Foods, Inc. v. Gilmore, 318 Or 363, 366, 867 P2d 1373 (1994).

Area(s) of Law:
  • Workers Compensation

I.K. v. Banana Republic, LLC.

A plaintiff under Oregon law can sue for negligent infliction of emotional distress where there is emotional harm from physical impact or violation of a legally protected interest. Norwest v. Presbyterian Intercommunity Hosp., 293 Or 543, 558-561(1982). A legally protected interest is "an independent basis of liability separate from the general duty to avoid foreseeable risk of harm" and must be "of sufficient importance as a matter of public policy to merit protection from emotional impact."  Philibert v. Kluster, 360 Or 698, 704-705.  The emotional distress must also be one that could have been foreseeable result of the violation of the protected interest. Id. 

Area(s) of Law:
  • Employment Law

Moody v. Oregon Community Credit Union

Although a party to a contract may only bring a breach of contract claim, an exception applies when the tort claim is predicated on a violation of a standard of care that exists independent of the contract.  See Georgetown Realty v. The Home Ins. Co., 313 Or 97, 106 (1992). 

State v. Black

Hightower requires a trial court to consider if the record could have developed in a materially different way but for the erroneous exclusion.

Area(s) of Law:
  • Appellate Procedure

State v. Meacham

Attempts to elude an officer may support a conclusion that a person is the subject of an outstanding felony warrant. State v. Maciel-Figueroa, 361 Or 163, 181 (2017).

Area(s) of Law:
  • Criminal Procedure

State v. Phillips

A defendant is entitled to have the jury instructed on a properly raised defense if there is any evidence to support the presence of each element of the defense.

Area(s) of Law:
  • Criminal Law

State v. Wilcox

When a party unsuccessfully offers evidence as a whole, without segregating admissible from inadmissible parts of the offer, the trial court’s ruling sustaining an objection will be affirmed on appeal if part of the offer is inadmissible. See State v. Brown, 310 Or 347, 358-59, 800 P2d 259 (1990).

Area(s) of Law:
  • Criminal Law

February 31 summaries

Cruz-Salazar v. SAIF

By providing a process for claim closure in claims involving combined conditions, ORS 656.268(1)(b) (setting forth procedure for the denial of combined conditions), the legislature had created an exception to the “general rule” that a worker is to be compensated for total impairment that is caused in material part by the compensable injury. Caren, 365 Or at 487.

Area(s) of Law:
  • Workers Compensation

State v. Campoverde

“[F]or the purposes of Article I, section 9, all investigative activities, including investigative inquiries, conducted during a traffic stop are part of an ongoing seizure and are subject to both subject-matter and durational limitations. Accordingly, an officer is limited to investigatory inquiries that are reasonably related to the purpose of the traffic stop or that have an independent constitutional justification.” State v. Arreola-Botello, 365 Or 695, 451 P3d 939 (2019).

Area(s) of Law:
  • Criminal Procedure

State v. Carlson

If a defendant is a cardholder, then, under ORS 137.542(2), the trial court must impose supervision conditions related to usable marijuana, medical cannabinoid products, cannabinoid concentrates, and cannabinoid extracts in the same manner as it would impose supervision conditions related to prescription drugs.

Area(s) of Law:
  • Criminal Law

State v. Flores

According to ORS 138.035(3), a probation violation judgment is not appealable.

Area(s) of Law:
  • Appellate Procedure

C.J. v .Flores

ORS 163.763(2) provides that, to obtain a SAPO, a petitioner must prove by a preponderance of the evidence that: ‘(A) The petitioner reasonably fears for the petitioner’s physical safety with respect to the respondent; and (B) The respondent subjected the petitioner to sexual abuse.”’

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

Kaser v. PERS

For the purposes of ORS 238.440, the term “determine” does not necessarily entail a robust investigation. Rather, “determine” is better understood to denote decision-making in which investigation may be incidental but does not play a primary role.

Area(s) of Law:
  • Employment Law

Phillips Sisson Industries, Inc. v. Hysell

Under the LLC Act, debt repayments are only distributions if they are "in respect of a member's interest." ORS 63.001(6).

Area(s) of Law:
  • Corporations

Rankin v. Landers

The writ of habeas corpus is appropriate for challenging pretrial detention, including the denial or amount of bail. See Collins v. Foster, 299 Or 90 (1985); Haynes v. Burks, 290 Or 75, 77 n 1, (1980) (both considering denial of pretrial release on writ of habeas corpus).

Area(s) of Law:
  • Criminal Procedure

Rudder v. Hosack

ORS 465.255 provides that “any owner or operator at or during the time of the acts or omissions that resulted in the release* * * shall be strictly liable for those remedial action costs incurred by the state or any other person that are attributable to or associated with a facility and for damages for injury to or destruction of any natural resources caused by a release.”

Area(s) of Law:
  • Environmental Law

State v. Brady

Under the Sixth and Fourteenth amendments of the United States Constitution, a defendant's conviction by jury must be unanimous. Ramos v. Louisiana, 140 S. Ct. 1390 (2020).  Under ORS 164.055(1)(c), selling is also an act of disposing of property and satisfies the elements of the statutes for first-degree theft if they commit "theft by receiving committed by buying, selling, borrowing or lending on the security of the property", and "[a] person commits theft by receiving if the person . . . disposes of property of another knowing or having good reason to know that the property was the subject of theft." ORS 164.095(1).

Area(s) of Law:
  • Criminal Law

State v. Reed

For a finding of compelling circumstances, the trial court must determine that the "circumstances of the ... interaction, viewed in their totality ... produce[d] 'the sort of police-dominated atmosphere that Miranda warnings were intended to counteract.'" State v. Roble-Baker, 340 Or 631, 641 (2006).

Area(s) of Law:
  • Criminal Procedure

State v. Woods

Under State ex rel Maney v. Hsu, 308 Or App 822, 827, 482 P3d 136, rev den, 368 Or 273 (2021), it must “plainly be the case” that subsequent Supreme Court decisions undercut the validity of prior decisions before the Court of Appeals will overrule its precedents.

Area(s) of Law:
  • Criminal Law

County of Klamath v. Ricard

Courts will “defer to [an] agency’s plausible interpretation of its own rule,” but otherwise will consider the text and context of the rule and “the rule’s adoption history.” Harris v. Dept. of Public Safety Standards, 287 Or App 111, 115, 400 P3d 1032, rev den, 362 Or 94 (2017).

Area(s) of Law:
  • Administrative Law

Little v. Branch 9 Design and Contracting, LLC

Under ORS 67.105(1), "all partners are liable jointly and severally for all obligations of the partnership unless otherwise agreed by the claimant or provided by law" and a "partnership is liable for loss or injury caused to a person . . . as a result of a wrongful act . . . of a partner acting in the ordinary course of business of the partnership or with the authority of the partnership."  Oregon case law allows for a partner to engage in "enterprise in his own behalf while he is a member of a partnership" but in such a case "the consent of the other partners must be obtained before one partner may engage in a competitive enterprise." Liggett v. Lester, 237 OR 52, 58-59 (1964).

Area(s) of Law:
  • Business Law

McGuire v. SAIF

A board may make a determination that in reviewing an award of attorney's fee's, it will not consider any evidence that was "not previously made a part of the record.” Daniel L. Demarco, 65 Van Natta 1837, 1847 (2013).

Area(s) of Law:
  • Workers Compensation

McKeown v. McKeown

Arbitrators are authorized to decide the law and the facts submitted. Brewer v. Allstate Insurance. Co., 248 Or 558, 561, 436 P2d 547 (1968). Perceived procedural errors during arbitration are not grounds to vacate an award under ORS 36.705(1)(d). Id. at 562.

Area(s) of Law:
  • Arbitration

State v. Cotan

A person commits identity theft if they, with the intent to deceive or defraud, obtain, possess, transfer, create, utters, or converts to the person’s own use the personal identification of another person.

Area(s) of Law:
  • Criminal Law

State v. Martineau

The fact that a verdict was unanimous provides assurance in and of itself that no juror was ignored, and all jurors’ reasonable doubts were resolved.

Area(s) of Law:
  • Criminal Law

State v. McLaughlin

A burglar must have the intent to commit some other crime once they have entered the premises unlawfully.

Area(s) of Law:
  • Criminal Law

State v. Swenson

"Unless otherwise specified, a refusal to submit to a urine test, and a license suspension for refusing to submit to a urine test, have the same consequences as a refusal to submit to a breath test and license suspension for refusing to submit to a breath test." ORS 813.132.

Area(s) of Law:
  • Criminal Law

State v. Yerton

A conviction for criminal mistreatment requires the state to show a defendant caused a “physical injury” to a “dependent person.” ORS 163.205(1)(b). A “physical injury” includes an “impairment of physical condition.” Prevention of breathing qualifies as a “physical injury,” but strangulation does not necessarily give rise to “physical injury” in every case. State v. Merrill, 303 Or App 107, 121, 463 P3d 540 (2020), adh’d to as modified on recons, 309 Or App 68, 481 P3d 441, rev den, 368 Or 402 (2021).

Area(s) of Law:
  • Criminal Law

Dept. of Human Services v. A.H.

ORS 419B.476(2)(a) provides that to change a case plan, the court must make certain findings, including the reasonability of DHS’s efforts to transition the ward back into the home.

Area(s) of Law:
  • Family Law

Sandu v. Kumar

Plaintiff’s failure to list the partnership meant it could not be considered by the bankruptcy trustee, it remains part of the bankruptcy estate.

Area(s) of Law:
  • Corporations

State v. Buell

According to State v. Hubbell, 314 Or App 844, 870, 500 P3d 728 (2021), when ORS 475.005(8) is properly construed, an “attempted transfer” requires proof of an “incomplete or unsuccessful transfer” of a controlled substance from one person to another.

Area(s) of Law:
  • Criminal Law

State v. D.L.

For purposes of ORS 426.130(1)(a)(C) multiple violent acts or a violent act coupled with additional threats will demonstrate that a person is highly likely to engage in future violence; however, “[a]cts of violence are not required to establish that a person is dangerous; verbal threats may be sufficient, if the evidence provides a foundation for predicting future violent behavior.” State v. J. D., 315 Or App 316, 321, 499 P3d 113 (2021) (citing J. G., 302 Or App at 101 n 3).

Area(s) of Law:
  • Criminal Procedure

State v. Davis

To be relevant, evidence introduced to impeach a need only have a mere tendency to show bias or interest of the witness.

Area(s) of Law:
  • Evidence

State v. Gilkey

For the state to establish that a officer has not exceeded the scope of a stop, it must present evidence that (1) the officer perceived a circumstance-specific danger, and that perception was objectively reasonable, and (2) the officer decided that the questions asked were necessary to address that danger, and it is objectively reasonable that those questions would ameliorate or clarify the safety concern. Jimenez, 357 Or at 430.

Area(s) of Law:
  • Criminal Procedure

State v. Messer

A sentencing court shall allow a defendant to be considered for a sentence reduction or release programs unless there are substantial and compelling reasons to do otherwise.

Area(s) of Law:
  • Sentencing

State v. Park

A trial court plainly errs when it orders restitution where there is no evidence establishing that the defendant’s criminal conduct resulted in economic damages to the victim. See State v. Tippetts, 239 Or App 429, 244 P3d 891 (2010); State v. Martinez, 250 Or App 342, 280 P3d 399 (2012).

Area(s) of Law:
  • Criminal Law

State v. Shaw

“[P]rosecutorial knowledge which would bar a second prosecution after a plea of guilty on the first charge has to be knowledge which the prosecutor had or should have had at a time when he was in a position to call the attention of the court to the problem and move for joinder prior to the offer of a guilty plea on the first charge by the defendant and the acceptance of it by the court.” 20 Or App at 337.

Area(s) of Law:
  • Criminal Procedure

Thoens v. Safeco Ins. Co.

An insurer can be liable for the insured’s attorney’s fees if it leaves the safe harbor provisions of ORS 742.061(3) by injecting other issues that become a matter of live controversy that are not covered in ORS 742.061(3).

Area(s) of Law:
  • Insurance Law

March 28 summaries

Hernandez v. Berger

When the record supports a lower court's finding that there was an inconsistency between a petitioner's testimony and that of their trial counsel, the Court of Appeals is bound by that factual finding. Davis v. Cain, 304 OrApp 356, 358 (2020).

Area(s) of Law:
  • Criminal Law

Lewis v. Worley

A settlor of a trust is entitled to attorney’s fees under ORS 20.105(1) if someone brings a claim against the trust without an objectively reasonable basis. "Although [ORS 130.815] says that the court may award fees 'to any party' in an action involving administration of a trust, it cannot justify an award of fees to a party that had no objectively reasonable basis for bringing the claims it did."

Area(s) of Law:
  • Trusts and Estates

Moody v. Dept. of Human Services

“By running a period of a specified number of days from a date of mailing, the legislature indicates its intention that the period extend exactly that number of days from the date of mailing and no more.” See Quillen, 159 Or App at 9-10.

Area(s) of Law:
  • Civil Procedure

Sedgwick CMS, Inc. v. Dover

“[T]he third-party statutes, understood together, require that a paying agency is an insurer that is responsible for paying benefits on a compensable claim at the time of settlement with a third-party tortfeasor.” Sedgwick CMS, Inc. v. Dover, 318 Or App 38, 50 (2022).

Area(s) of Law:
  • Workers Compensation

State v. J. R.

“‘[A]djudication’ and ‘disposition’ of the allegations are understood to refer to distinct phases of delinquency proceedings,” M. A. S., 302 Or App at 701, and that, had the legislature intended the phrase detention “before adjudication on the merits” to mean detention before both the adjudication and the disposition stages, it would not have chosen to omit the term “disposition” from ORS 419C.145. Cf. PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993).

Area(s) of Law:
  • Juvenile Law

State v. Merritt

“From the fact that the legislature made arrival of the protected party a prerequisite to the enforcement of a foreign restraining order that has not been presented to a sheriff or filed in the circuit court, we infer that the legislature intended that such an order would not be enforceable absent arrival.” See ORS 24.190.

Area(s) of Law:
  • Criminal Law

State v. Polezhaev

An officer has objective probable cause to arrest someone for possession of heroin if the facts known to the officer make it objectively reasonable to believe that it is more likely than not that the person possesses some amount of heroin. State v. Madden, 315 Or App 787, 795, 502 P3d 746 (2021).

Area(s) of Law:
  • Criminal Procedure

Evans v. Nooth

To obtain relief under Article I, section 11, of the Oregon Constitution, a post-conviction petitioner must show “that counsel failed to exercise reasonable professional skill and judgment, and that the 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. Alcaraz

A defendant who is approached by a law enforcement officer and asked to produce a fishing license cannot reasonably believe that they are free to leave and are therefore stopped. State v. Almahmood, 308 OrApp 795 (2021).

Area(s) of Law:
  • Criminal Procedure

State v. S. R.-N.

"[A] constitutionally significant deprivation of due process requires an assessment of the risk that a procedural failure resulted in the commitment." See Mathews v. Elridge, 424 US 319, 335 (1976).

Area(s) of Law:
  • Civil Commitment

Mohabeer v. Farmers Ins. Exchange

Oregon’s anti-SLAPP statute provides “an expedited procedure for dismissal of certain nonmeritorious civil cases without prejudice at the pleading stage.” Neumann v. Liles, 358 Or 706, 723, 369 P3d 1117 (2016). In the context of a special motion to strike, it is not premature for the court to decide whether prima facie evidence of the elements of the claim has been presented before full discovery or for a party to raise the issue on appeal of the denial of a special motion to strike.

Myhre v. Potter

"[T]he 20-day time limitation on interposing an objection to vacate or modify an arbitration award under ORS 36.705 and ORS 36.710 is not a shield against certain purely procedural objections[.]" "[A] petition to confirm an award initiates a special statutory proceeding that does not contain a limitation on the time period, after an arbitration award, within which the petition must be filed." ORS 18.180.

Area(s) of Law:
  • Alternative Dispute Resolution

RLF Liquidating, LLC v. McDonald Brothers, Inc.

A motion for leave to amend should be granted if it "would neither change nor add a claim or defense" and "it would not prejudice plaintiff[.]" Ramsey v. Thompson, 162 OrApp 139 (1999).

Area(s) of Law:
  • Attorney Fees

State v. Avila

For a Miles instruction, the State is required to present evidence that a physical condition makes a defendant more susceptible to the influence of intoxicants. State v. Huck, 100 Or App 193, 197, 785 P2d 785 (1990).

Area(s) of Law:
  • Criminal Procedure

State v. Jackson

Under ORS 810.420(2), an officer must be trained on the type of speed measuring device used.

Area(s) of Law:
  • Traffic Infractions

State v. Soprych

A prosecutor’s reference to or comment on a defendant’s invocation of a constitutional right, such as the right to counsel, the right to remain silent, or the right to a trial, may prejudice a defendant’s ability to have a fair trial if the jury is likely to draw a negative inference from the exercise of that right. State v. Smallwood, 277 Or 503, 505-06, 561 P2d 600, cert den, 434 US 849, 98 S Ct 160, 54 L Ed 2d 118 (1977).

Dept. of Human Services v. B. F.

Failure to make the findings required by Dept. of Human Services v. W. C. T. is reversible error, even if the order was given before the decision in W. C. T. State v. Jury, 185 OrApp 132, 136 (2002). 

Area(s) of Law:
  • Juvenile Law

State v. Gastiaburu

Proof of how much is paid in medical bills by an insurer is not enough by itself to sufficiently prove that the amount paid is reasonable for determining restitution.

Area(s) of Law:
  • Remedies

State v. Gonzalez-Coria

"When the police have obtained valid consent from someone with actual authority to search a place, the fact that it is a shared space is irrelevant, unless, at a minimum, a cotenant is present, claims a privacy interest in the space, and expressly objects to the search or refuses consent." Or. Const. Art. I, § 9.

Area(s) of Law:
  • Criminal Procedure

State v. Greeley

"[T]he right to counsel under Article I, section 11, includes the right to be represented by counsel during all critical stages of a criminal proceeding, unless the defendant voluntarily and intelligently  waives  that  right.”

Area(s) of Law:
  • Criminal Procedure

State v. Jacoby

To establish probable cause, the officer, at the time of the stop, "must subjectively believe that a violation has occurred, and . . . that belief must be objectively reasonable under the circumstances." State v. Carson, 287 Or App 631, 634 (2017). 

Area(s) of Law:
  • Criminal Procedure

State v. Krieger

An officer is limited to investigatory inquiries that are reasonably related to the traffic stop or must otherwise have an independent constitutional justification.

Area(s) of Law:
  • Criminal Procedure

State v Mashadda

Plain error review requires the error to be “apparent on the record without requiring the court to choose among competing inferences.” State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). “[W]here the prosecutor presents some evidence to support restitution of a particular amount, and the defendant does not raise an objection to the amount of restitution . . . the trial court does not plainly err in imposing restitution in that amount.” State v. West, 249 Or App 257, 258, 274 P3d 892 (2012) (summarizing State v. Gruver, 247 Or App 8, 17, 268 P3d 760 (2011)).

Area(s) of Law:
  • Appellate Procedure

Schaefer v. Marion County

The statutory definition of "airports" does not include the land adjacent to runways. ORS 836.605(2).

Area(s) of Law:
  • Land Use

Sound-Rite Plastics, Ltd. v. Wright

“Under Washington law, ‘an anticipatory breach occurs when one of the parties to a bilateral contract either expressly or impliedly repudiates the contract prior to the time of performance. A party’s intent not to perform may not be implied from doubtful and indefinite statements that performance may or may not take place.’” Wallace Real Estate Inv., Inc. v. Groves, 124 Wash  2d  881, 898, 881 P2d 1010, 1019 (1994).

Area(s) of Law:
  • Contract Law

State v. V. L.

“[T]he facts in a juvenile petition that must be proved beyond a reasonable doubt under ORS 419C.400(2) are the facts described in ORS 419C.255(1)(b), and that that set of facts is separate from, and does not include, facts about a youth’s age. Thus, ORS 419C.400(2) does not require facts about a youth’s age to be established beyond a reasonable doubt.” See State v. Stamper, 197 Or App 413, 420, 106 P3d 172, rev den, 339 Or 230 (2005).

Area(s) of Law:
  • Juvenile Law

Upham v. Hummel

ORS 192.329(2)(b) and (f) provide that a public body's response to a public record request is complete if it asserts that the requested records are exempt from disclosure with a statement that the requester may seek review of the exemption. ORS 192.324(4)(a) provides that if there is no exemption, a "public body may establish fees reasonably calculated to reimburse the public body for the public body's actual cost of making public records available." 

Area(s) of Law:
  • Administrative Law

Wetzel v. Sandlow

When determining the adequacy of a corporation’s capitalization, a court evaluates whether capital is sufficient to cover anticipated liabilities. Klokke Corp. v. Classic Exposition, Inc., 139 Or App 399, 405, 912 P2d 929, rev den, 323 Or 690 (1996). As part of the issue of veil-piercing, plaintiffs have the burden of proof for showing insufficient capitalization. See Rowden v. Hogan Woods, LLC, 306 Or App 658, 680, 476 P3d 485 (2020).

Area(s) of Law:
  • Business Law

April 30 summaries

Griffin Oak Prop. Invest. v. City of Rockaway Beach

No city official can bind a city to a smaller setback by incorrectly approving a site plan showing a smaller setback. Doney v. Clatsop County, 142 OrApp 497 (1996).

Area(s) of Law:
  • Land Use

State v. Brown

Mere proximity to suspected criminal activity, or association with a suspected or known criminal, is insufficient to support reasonable suspicion. State v. Kingsmith, 256 Or App 762, 772, 302 P3d 471 (2013).

Area(s) of Law:
  • Criminal Procedure

State v. Storm

ORS 137.106 requires (1) criminal activity; (2) economic damages; and (3) a causal relationship between the two. The trial court has "the authority to make [their] own, independent, factual findings as to two of the three elements but "the restitution statute does not grant [a trial court] similar authority to make its own independent factual findings about the criminal act that the defendant committed."  State v. Andrews, 295 Or App 195 (2018). 

Area(s) of Law:
  • Sentencing

Wilkins and Wilkins

ORS 107.105(1)(d) provides that the trial court "shall designate one or more categories of spousal support and shall make findings of the relevant factors in the decision.” The factors for the court to consider include but are not limited to health and age of the parties; the standard living established during the marriage; work skills and experience of the parties; and any other factors that the court deems just and equitable. ORS 105(a)(d)(C). 

Area(s) of Law:
  • Family Law

Brush and Brush

A trial court’s “just and proper” division of marital property requires consideration of both the statutory factors in ORS 107.105(1)(f) and equitable factors. Kunze and Kunze, 337 Or 122, 135, 92 P3d 100 (2004).

Area(s) of Law:
  • Family Law

State v. Edwards

Under the Oregon Constitution,“the fact of arrest does not grant an unqualified right to search an arrestee’s person for crime evidence,” State v. Owens, 302 Or 196, 201, 729 P2d 524 (1986), and requirements must be met for the exception to apply.

Area(s) of Law:
  • Criminal Law

State v. Farr

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted in the statement. OEC 801(3). To establish first-degree criminal mischief under ORS 164.365(1)(a)(A), the state must prove that the defendant damaged another’s property “[i]n an amount exceeding $1,000.”

Area(s) of Law:
  • Criminal Law

State v. Miller

Article I, Section 9, prohibits “unreasonable” searches and seizures. A “stop” is a type of seizure that amounts to a “temporary detention” conducted “for investigatory purposes.” Maciel-Figueroa, 361 Or at 169-70. A stop must be justified by a reasonable suspicion of criminal activity. State v. Rodgers/Kirkeby, 347 Or 610, 621, 227 P3d 695 (2010).

Area(s) of Law:
  • Criminal Law

Sullivan v. SAIF

For a board's order to be supported by substantial evidence, it must point out “what findings the board made and how those findings led the board to its ultimate conclusion—that is, it must be supported by substantial reason.” Armstrong v. Asten-Hill Co., 90 Or App 200, 206, 752 P2d 312 (1988).

Area(s) of Law:
  • Workers Compensation

Dept. of Human Services v. L.M.K.

“Reasonable efforts” before a permanency hearing must allow enough time for a meaningful assessment of a parent’s progress toward reunification. Dept. of Human Services v. W. M., 310 Or App 594, 598-99, 485 P3d 316 (2021).

Area(s) of Law:
  • Juvenile Law

Durocher and Durocher

An expert witness’ testimony may be excluded when the witness’s evaluation was not conducted in compliance with the trial court’s order on the subject, even if the testimony is otherwise admissible.

Area(s) of Law:
  • Evidence

R.S.R. v. Dept. of Human Services

In absence of physical injury, a party may recover emotional and psychological damages if they establish that they have a “special relationship” with the other party. See Lowe v. Philip Morris USA, Inc., 207 Or App 532, 551, 142 P3d 1079 (2006).

Area(s) of Law:
  • Family Law

State v. Aranda

Under OEC 609(1), “[f]or the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted…”

Area(s) of Law:
  • Constitutional Law

State v. B.Y.

Juvenile courts lack the authority to impose consecutive commitments. Juvenile courts, like adult courts, do not possess the unlimited authority to impose consecutive commitments.

Area(s) of Law:
  • Juvenile Law

State v. Lee

“[N]o warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.” Ore. Const. Art. I, § 9.

Area(s) of Law:
  • Criminal Procedure

State v. Moore

The amendments made to ORS 131.125 were intended to extend the limitations period in the case of incidents of sexual abuse that had not yet been barred under the previous statute.
Under ORS 161.067(3), a court can enter multiple convictions for criminal conduct involving the same conduct or criminal episode, same victim, and same statutory provision only if the violations are separated from one another by a “sufficient pause” in the defendant’s criminal conduct. State v. Bradley, 307 Or App 374, 380, 477 P3d 409 (2020).

Area(s) of Law:
  • Criminal Law

State v. Tardie

Search warrant expiration applies to execution, not search completion, and an Officer’s training linked to case facts establishes probable cause for a search warrant. See State v. Monger, 306 Or App 50, 472 P3d 270, rev den, 367 Or 291 (2020); see also State v. Cazee, 308 Or App 748, 482 P3d 140 (2021). Jury is improperly instructed when statutory definition of “knowingly” under ORS 161.085(1) is embellished.

Area(s) of Law:
  • Criminal Law

State v. Townsend

A person commits second-degree forgery when, "with intent to injure or defraud, the person utters a written instrument which the person knows to be forged,” ORS 165.007(1)(b), and in that context, “utter” means “to issue, deliver, publish, circulate, disseminate, transfer or tender a written instrument or other object to another,” ORS 165.002(7).

Area(s) of Law:
  • Criminal Law

Wirth v. Wirth

ORS 107.105(1)(d)(C) sets forth a nonexclusive list of factors, including earning capacity, that the court considers when awarding spousal maintenance support. In “assessing earning capacity, the court considers a range of considerations other than actual current income.” Crump and Crump, 138 Or App 362, 366, 908 P2d 839 (1995).

Area(s) of Law:
  • Family Law

Bialostosky v. Cummings

“‘Public body’ includes every state officer, agency, department, division, bureau, board and commission; every county and city governing body, school district, special district, municipal corporation, and any board, department, commission, council, or agency thereof; and any other public agency of this state.” ORS 192.311(4).

Area(s) of Law:
  • Administrative Law

County of Linn v. State of Oregon

When it has been determined that a particular statutory scheme contains a contractual promise, the “standard of clear and unmistakable intent * * * focuses only on whether the legislature intended a particular * * * provision to be part of that promise.” Moro v. State, 357 Or 167, 203 (2015).

Area(s) of Law:
  • Contract Law

Donahue v. Nagel

“A promise to convey an interest in real property, no less than the conveyance itself, is subject to the statute of frauds.” Parthenon Construction & Design, Inc. v. Neuman, 166 Or App 172 (2000).

Area(s) of Law:
  • Property Law

Henretty v. Lewis

“[A] trial court legally errs when it fails to determine which parent is entitled to the statutory primary caregiver preference and then account for that preference in its custody determination.” Dickson and Schwartz, 313 Or App 616, 617-18 (2021).

Area(s) of Law:
  • Family Law

Monica v. Myers

It is a petitioner’s burden to demonstrate, by a preponderance of the evidence, that (1) counsel failed to exercise reasonable professional skill and judgment; and (2) petitioner was prejudiced as a result. See Trujillo v. Maass, 312 Or 431, 435 (1991).

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

State v. De Leon Say

In State v. Skillicorn, the Supreme Court clarified that sexual-predisposition evidence is not propensity evidence. State v. Skillicorn, 367 Or 464 (2021).

Area(s) of Law:
  • Evidence

State v. Donaldson

“A person commits the offense of failure to yield to an emergency vehicle or ambulance if an ambulance or emergency vehicle that is using a visual or audible signal in a manner described under ORS 820.300 and 820.320 approaches the vehicle the person is operating and the person does not do all of the following: (a) yield the right of way to the ambulance or emergency vehicle; (b) immediately drive to a position as near as possible and parallel to the right-hand edge or curb of the roadway clear of any intersection; (c) stop and remain in such position until the emergency vehicle or ambulance has passed.” ORS 811.145.

Area(s) of Law:
  • Traffic Infractions

State v. Murphy

If a witness unambiguously vouched, it is plain error not to have stricken the testimony, even absent an objection; however, it is a matter of discretion whether to correct this error. See State v. Corkill, 262 Or App 543, 552-53 (2014); State v. Vanornum, 354 Or 614, 629 (2013).

Area(s) of Law:
  • Criminal Procedure

State v. Renard

When a court properly admits challenged testimony as nonscientific expert opinion, the court need not decide whether the testimony was also admissible as lay opinion. State v. Rambo, 250 Or App 186, (2012).

Area(s) of Law:
  • Evidence

State v. Smith

“If the law focuses on the forbidden effects, and the proscribed means of causing those effects include expression, then the law is analyzed under the second Robertson category,” determining whether it “appears to reach communication privileged by Article I, section 8, or whether the law can be interpreted to avoid such overbreadth.” State v. Robertson, 293 Or 402, 412 (1982); State v. Rangel, 328 Or 294, 300 (1999). The government cannot discriminate against kinds of speech based on the “ideas or opinion it conveys”. Iancu v. Brunetti, 139 S Ct 2294, 2499 (2019).

Area(s) of Law:
  • Constitutional Law

State v. Wagner

A witness testifying as an expert must have “the necessary skill and knowledge to arrive at an intelligent conclusion about the subject matter in dispute,” and a dangerous weapon is “any weapon, device, instrument, material or substance which under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or serious physical injury.” Burton v. Rogue Valley Medical Center, 122 Or App 22, 26 (1993); ORS 161.015(1).

Area(s) of Law:
  • Criminal Procedure

May 36 summaries

State v. Jackson

“[T]he doctrine of chances, standing alone, is insufficient to make evidence * * * relevant[,]” and requires separate linkage that does not rely on prohibited inferences to the State’s proof of a material fact.

Area(s) of Law:
  • Evidence

Thomas v. Dillon Family Limited Partnership II

ORS 90.360(2) provides a tenant the right to damages and injunctive relief for a landlord’s noncompliance with the habitability requirements in ORS 90.320 and narrowly describes express and specific limitations for recovery of damages.

Area(s) of Law:
  • Landlord Tenant

Verardo v. Dept. of Transportation

To qualify for the application of discretionary immunity, the discretionary decision must: (1) be the result of a choice involving the exercise of judgment; (2) involve public policy as opposed to the routine day-to-day decision-making of public officials; and (3) be exercised by a body or person that has the responsibility or authority to make it. Turner v. State of Oregon, 359 Or 644, 652 (2016).

Area(s) of Law:
  • Qualified Immunity

Aung v. Cain

If “a defendant is restrained in a manner that is not visible to the jury, prejudice will not be presumed.” Sproule v. Coursey, 276 Or App 417, 425 (2016).

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

Harmon v. Oregon Medical Board

Under ORS 676.175(1), the OMB is required to keep confidential and not disclose to the public “any information obtained by the board as part of an investigation of a licensee or applicant, including complaints concerning licensee or applicant conduct and information permitting the identification of complainants, licensees or applicants[.]”

Area(s) of Law:
  • Administrative Law

McNeil v. Geico Casualty Company, Inc.

In safe harbor provisions for UM/UIM claims, “damages due the insured” “refers to the type of damages that would be payable in that type of case, namely, the damages that the insured would be ‘legally entitled to recover’ from the uninsured or underinsured motorist.” Spearman v. Progressive Classic Ins. Co., 361 Or 584, 593 (2017).

Area(s) of Law:
  • Insurance Law

State v. Bryars

A verbal encounter rises to the level of a seizure “when the content of the questions, the manner of asking them, or other actions that police take (along with the circumstances in which they take them) would convey to a reasonable person that the police are exercising their authority to coercively detain the citizen[.]” State v. Backstrand, 354 Or 392, 412 (2013).

Area(s) of Law:
  • Criminal Procedure

State v. Parkerson

Whether a defendant “comes within *** ORS 161.735 is a question of fact to be determined by the court upon consideration of the presentence report, the psychiatric report, the evidence in the case or any evidence produced at the presentence hearing.” State v. Nickell, 302 Or 439, 443 (1986).

Area(s) of Law:
  • Criminal Procedure

State v. Preston-Mittasch

Under ORS 137.545 (5)(a), the court may revoke probation and either (A) impose the suspended sentence, or (B), “[i]f no other sentence has been imposed,” impose any other sentence that originally could have been imposed.

Area(s) of Law:
  • Sentencing

Atkinson v. Board of Parole and Post-Prison Supervision

The mere possibility that petitioner’s parole status could have changed from active to inactive at an earlier date is not a legally sufficient collateral consequence that would prevent dismissal of the case.  Smith v. Board of Parole, 305 Or App 773, 776, rev den, 367 Or 387 (2020).

Area(s) of Law:
  • Criminal Law

Frehoo, Inc. v. Bureau of Lab. and Indus. of Oregon

To show a hostile workplace, an employee who is subjected to verbal or physical conduct of a sexual nature which was unwelcome and resulted in severe or pervasive conditions which alter their employment create an abusive work environment. The court looks at the totality of circumstances.

Area(s) of Law:
  • Employment Law

Hofer v. OHSU

Absolute privilege, a complete bar to liability for defamation, generally applies in governmental settings to statements made by public officials in the course of their public duties. Lowell v. Medford School Dist. 549C, 313 Or App 599, 604-05 (2021); Johnson v. Brown, 193 Or App 375, 380 (2004). To recover damages from one’s physician for emotional harm absent a physical injury, the physician’s standard of care must include a “specific duty to be aware of and guard against particular adverse psychological reactions or consequences to medical procedures.” Curtis v. MRI Imaging Services II, 327 Or 9, 14-15 (1998).

Area(s) of Law:
  • Tort Law

Jaynes v. Cain

Under the Oregon Constitution, to be entitled to post-conviction relief based on a claim of inadequate assistance of counsel, “a petitioner must prove two elements: first, that trial counsel failed to exercise reasonable professional skill and judgment, and second, that the petitioner suffered prejudice as a result of counsel’s inadequacy.”

Area(s) of Law:
  • Criminal Law

Lankford v. Cain

To receive relief, trial counsel’s failure to investigate must result in more than a mere possibility that the proceeding would have ended in a different result.

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

Rojo-Garfias v. State

“When the law is not succinct and straightforward a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” See Padilla, at 559 US at 369.

Area(s) of Law:
  • Immigration

State v. Abbott

In the absence of a Meyrick colloquy, a trial court’s acceptance of a defendant’s waiver of counsel is proper if, when considering the totality of the circumstances, the record reflects that the defendant “substantially appreciates the material risks of self-representation in [their] case.” State v. Jackson, 172 Or App 414, 423 (2001).

Area(s) of Law:
  • Criminal Procedure

State v. Buchnoff

Under ORS 162.205(1)(a), “a person commits the crime of failure to appear in the first degree if the person knowingly fails to appear as required after having 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 against the person of having committed a felony.”

Area(s) of Law:
  • Criminal Law

State v. Carr

The Sixth Amendment right to a jury trial requires a unanimous jury verdict to convict a defendant for a serious offense. Ramos v. Louisiana, ___ US ___ (2020).

Area(s) of Law:
  • Criminal Law

State v. Chemxananou

The “witness false in part” instruction provides “[t]hat a witness false in one part of the testimony of the witness may be distrusted in others[.]” ORS 10.095(3).

Area(s) of Law:
  • Criminal Law

State v. Haley

Under State v. Macon, 249 Or App 260 (2012), whether a particular space is a “building” under ORS 164.215 depends “on whether the area was self-contained from its parent building, including secure physical access, separate function, and separate occupation."

Area(s) of Law:
  • Criminal Law

State v. Houston

Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence,” and information about the purpose and interest of an organization associated with a testifying interviewer is relevant to the jury’s evaluation. OEC 401; State v. Valle, 255 Or App 505, 809 (2013).

Area(s) of Law:
  • Criminal Procedure

State v. Marks

ORS 161.067(1) provides, “When the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations.” See ORS 161.067(1).

Loss of reputation is considered “economic damages,” when the damages are objectively verifiable. See ORS 137.103(2); ORS 31.705(2)(a).

Area(s) of Law:
  • Criminal Law

Taylor v. State Hospital

OAR 309-114-0010(1)(b)(C) authorizes “[i]nvoluntary administration of significant procedures with good cause.” OAR 309-114-0010(2)(a) provides that the Oregon State Hospital may consider a person incapable of consenting to significant procedures "only if the person currently demonstrates an inability to reasonably comprehend and weigh the risks and benefits of the proposed procedure…or no treatment at all.”

Area(s) of Law:
  • Administrative Law

Underwood v. City of Portland

“At  the  summary  judgment  stage,  issue  preclusion  applies  as a matter of law only if it can be conclusively established from the record that “all the Nelson requirements [are] sat-isfied.” Barackman  v.  Anderson,  338  Or  365,  372 (2005).

Area(s) of Law:
  • Criminal Law

Albany & Eastern Railroad Company v. Martell

Under Halperin v. Pitts, 352 Or 482 (2012) and the statute’s structure, ORS 20.080(2) permits attorney fee awards to defendants prevailing on equitable counterclaims, provided other requirements of the statute are met.

Area(s) of Law:
  • Attorney Fees

Clark v. University of Oregon

Unless the parties invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant’s duty, the issue of liability for harm actually resulting from defendant’s conduct properly depends on whether that conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff. Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 17, 734 P2d 1326 (1987).

Area(s) of Law:
  • Tort Law

I.R.S. v. Hanington

The definition of abuse in the Elderly Persons and Persons with Disabilities Abuse Prevention Act is not constitutionally overbroad and does not require construction applying a heightened standard as in State v. Rangel, 328 Or 294 (1999).

Area(s) of Law:
  • Constitutional Law

Santoro v. Eagle Crest Estate Homesite Owners Assn.

“When one party to a contract is given discretion in the performance of some aspect of the contract, the parties ordinarily contemplate that that discretion will be exercised for particular purposes. If the discretion is exercised for purposes not contemplated by the parties, the party exercising discretion has performed in bad faith.” Best v. U. S. National Bank, 303 Or 557, 563, 739 P2d 554 (1987).

Area(s) of Law:
  • Property Law

State v. Actkinson

A person is not eligible for a downward departure sentence if they were on parole, probation, or post-prison supervision for a crime as listed in ORS 137.717(1)–including first degree theft–at the time of committing the crime at issue. ORS 137.717(6)(a).

Area(s) of Law:
  • Criminal Law

State v. Bostwick

Under ORS 162.355, a person falsely simulates the legal process when they intentionally transmit "fake, imitation, counterfeit, or pretend document that appears to be, in both form and substance, a genuine legal document."

Area(s) of Law:
  • Criminal Procedure

State v. Davis

To determine whether to admit evidence of uncharged acts of sexual misconduct in trials for sex crimes, the court must use the LeMay factors test, which considers: “(1) the similarity of the uncharged misconduct; (2) the temporal proximity of the uncharged acts to the charged acts; (3) the frequency of the prior acts; (4) the existence or nonexistence of intervening circumstances; and (5) the need for the evidence in addition to the testimony.” State v. Terry, 309 Or App 459, 465 (2021).

Area(s) of Law:
  • Evidence

State v. Jackson

With an Alford plea, a defendant does not admit guilt “but admits that sufficient evidence exists to convict him of the offense.” United States v. Ramirez-Gonzalez, 755 F3d 1267, 1273 (11th Cir 2014).

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

State v. Nees

Article I, section 11, guarantees a criminal defendant the right to counsel. However, a defendant may waive that right if they do so knowingly and intentionally. State v. Langley, 351 Or 652, 669, 273 P3d 901 (2012).

Area(s) of Law:
  • Criminal Law

State v. Nolen

Under OEC 404(3), “the use of other-acts evidence ‘to prove that a person has a propensity to engage in certain types of behavior and that the person acted in conformance with that propensity on a particular occasion,’” is barred.

Area(s) of Law:
  • Evidence

State v. Waterman

Under ORS 164.365(1)(a)(A), a conviction of first-degree criminal mischief requires proof, among other elements, that Defendant "[d]amage[d] ... property of another***[i]n an amount exceeding $1,000[.]"

Area(s) of Law:
  • Criminal Law

Wedemeyer v. Nike Ihm, Inc.

ORCP 68 C(2)(a) provides: “A party seeking attorney fees shall allege the facts, statute, or rule that provides a basis for the award of fees in a pleading filed by that party. Attorney fees may be sought before the substantive right to recover fees accrues."

Area(s) of Law:
  • Attorney Fees

June 42 summaries

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

Pursuant to ORS 418.270(4), “a relinquishment becomes irrevocable once a child is placed in the physical custody of people for the purpose of adoption, unless ‘fraud or duress is affirmatively proved.’”

Area(s) of Law:
  • Juvenile Law

DHS v. M.H. and T. H.

ORS 419B.809(6) allows a juvenile court to direct that a petition be amended. See ORS 419B.809(6). “A court is bound by the juvenile court’s findings so long as there is any evidence in the record to support them.” Dept. of Human Services v. J.F.D., 255 Or App 742 (2013).

Area(s) of Law:
  • Juvenile Law

State v. Finley

ORS 419C.370 provides: “(1) The juvenile court may enter an order directing that all cases involving: (a) Violation of a law or ordinance relating to the use or operation of a motor vehicle, boating laws or game laws be waived to criminal or municipal court[.]”

Area(s) of Law:
  • Criminal Law

State v. McKibben

“A person is “seized” for purposes of Article I, Section 9 in either one of two situations: “(a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual’s liberty or freedom of movement; or (b) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.” State v. Ashbaugh, 349 Or 297, 316 (2010) (emphasis in original; footnote omitted).

Area(s) of Law:
  • Criminal Law

State v. Moala

A photograph illustrating nonverbal behavior intended to constitute an assertion—a "statement," OEC 801(1)(b)—that is intended to prove the truth of the claim in the statement is hearsay.

Area(s) of Law:
  • Evidence

State v. Reyes Prado

“[P]robable cause is not a necessary prerequisite to asking a defendant for consent to perform field sobriety tests in the context of a DUII stop.” State v. Ramos, 149 Or. App. 269, 272 (1997) (emphasis in original). “In contrast, if an officer compels a defendant to participate in field sobriety tests, the officer must have probable cause, in conjunction with a recognized exception to the warrant requirement…to do so.” State v. Nagel, 320 Or 24 (1994).

Area(s) of Law:
  • Criminal Law

State v. Rodriguez

An officer’s initiation of a stop must be based on an objectively reasonable inference of illegal activity by that person, under the totality of the circumstances existing at the time of the stop. State v. Dampier, 244 Or App 547, 551, 260 P3d 730 (2011).

Area(s) of Law:
  • Criminal Procedure

Dep't of Hum. Servs. v. M.E.M.

"On a motion to dismiss dependency jurisdiction, DHS bears the burden of proving by the preponderance of the evidence there is a present, credible threat of actual harm to the child and demonstrating 'a nexus between the allegedly risk-causing conduct and the harm to the child.'" DHS v. JM, 267 P.3d 402 (Or. Ct. App. 2015); DHS v. CJT, 308 P.3d 307 (Or. Ct. App. 2013).

Area(s) of Law:
  • Juvenile Law

Dep’t of Hum. Servs. v. J. H.

“[W]here one is holding over after expiration of his term under claim or color of right, his official acts are those of a de facto officer, and are valid as to the public and third persons,and cannot be collaterally assailed.” Hamlin v. Kassafer, 15 Or. 456 (1887).

Area(s) of Law:
  • Juvenile Law

OR-OSHA v. Loy Clark Pipeline, Co.

OAR 438-085-0526 provides: “(1) Unless otherwise provided by the Administrative Law Judge, amendments to the citation and to the request for hearing, including affirmative defenses, shall be allowed up to the date and time set for hearing. (2) An amendment made by OR-OSHA under this rule may not allege a new violation or increase a penalty.”

Area(s) of Law:
  • Administrative Law

State v. Delaurent

District attorneys are not law enforcement officers for the purpose of the wiretapping statute, ORS 165.540.

Area(s) of Law:
  • Criminal Law

State v. Garcia

The trial court has discretion to dismiss criminal charges before trial, and scientific evidence is admissible if it is relevant under OEC 401, if it would assist the trier of fact under OEC 702, and if its probative value is not substantially outweighed by the danger of unfair prejudice under OEC 403. State v. Stough, 148 Or App 353, 355 (1997); Jennings v. Baxter Healthcare Corp., 331 Or 285, 381 (2000).

Area(s) of Law:
  • Criminal Law

State v. Glickert

“The ‘critical question’ that distinguishes ‘relaxed conversation’ from ‘coercive questioning’ is … whether, given all the circumstances, a reasonable person would believe that their freedom of movement [is] being significantly restricted.” State v. Reyes-Herrera, 500 P.3d 1 at 61-62 (Or. 2021).

Area(s) of Law:
  • Evidence

State v. Horn-Garcia

Informing the jury of the consequences of a particular verdict does not in and of itself violate a defendant’s due process rights under the Sixth and Fourteenth Amendments or deprive the defendant of a fair trial, and “[a] trial court does not err in refusing to give a requested instruction ‘if the substance of the requested jury instruction, even if correct, was covered fully by other jury instructions given by the trial court.’” State v. Amini, 174 Or App 370, 383 (2001); State v. Harrison, 292 Or App 232. 240 (2018).

Area(s) of Law:
  • Criminal Law

State v. Morris

“A stop is lawful if the officer had an actual subjective belief that the person stopped committed a specific crime or was about to commit a specific crime, and the officer’s subjective belief was objectively reasonable based on the totality of the circumstances at the time of the stop.” State v. Maciel-Figueroa, 361 Or. 163, 165-6 (2017).

Area(s) of Law:
  • Evidence

State v. Reyes Castro

The preservation rule requires parties to present their challenges to a trial court prior to an appeal, and “restitution may be awarded under ORS 137.106 if defendant’s crime was a factual cause of the victim’s economic damages and those damages were the reasonably foreseeable consequence of the crime.” Peeples v. Lampert, 345 Or 209, 219 (2008); State v. Gerhardt, 360 Or 629, 636 (2016).

Area(s) of Law:
  • Criminal Law

State v. Westom

While the dictionary “establishes that, at its core, contact [used as a noun] involves a direct communication or a meeting,” “contact” can, in context, have a broader meaning. Boyd v. Essin, 170 Or App 509, 516. Knowledge, proximity, and the duration of the contact are factors to consider in assessing the term’s meaning.

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

Tenorio v. Bowser

A petitioner may raise a challenge to the constitutional adequacy of their counsel’s assistance on post-conviction review. See ORS 138.530(1)(a). “To prevail on a post-conviction claim of inadequate assistance of counsel, the burden is on the petitioner to show, by a preponderance of the evidence, facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment and that the petitioner suffered prejudice as a result.” Lambert v. Palmateer, 182 Or App 130, 135 (2002).

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

Timber Town Living v. Dept. of Human Services

Violation severity is defined by ORS 4 41.731(2)(b), which creates four levels of severity: (1) a Level 1 violation “results in no actual harm or in potential for only minor harm”; (2) a Level 2 violation “results in minor harm or potential for moderate harm”; (3) a Level 3 violation “results in moderate harm or potential for serious harm”; and (4) a Level 4 violation “results in serious harm or death.”

Area(s) of Law:
  • Elder Law

DHS v. J.D.

When a juvenile court relies on facts concerning an “underlying cause” for jurisdiction, the underlying cause must be sufficiently identified in the jurisdictional judgment to provide a parent with the information needed to address the issue.  Dep’t. of Human Services v. C.E., 288 Or App 649, 658 (2017).

Area(s) of Law:
  • Juvenile Law

DHS v. J.N.A.

To terminate a parent’s rights, a court must determine a parent unfit within the meaning of ORS 419B.504 and that it is in the best interests of the child to terminate rights pursuant to ORS 419B.500.

Area(s) of Law:
  • Juvenile Law

DHS v. R.H.

Per ORAP 5.45(3), “Each assignment of error must identify precisely the legal, procedural, factual, or other ruling that is being challenged.”

Area(s) of Law:
  • Juvenile Law

Precision Castparts Corp. - PCC Structurals v. Cramer

“An insurer’s conduct is not unreasonable if the insurer had a legitimate doubt about its liability.” Liberty Northwest Ins. Corp. v. Olvera-Chavez, 267 Or App 55 (2014).

Area(s) of Law:
  • Employment Law

Stancliff and Stancliff

In determining whether relocation is in the children’s best interests, a court must consider all of the relevant factors in ORS 107.137(1), bearing in mind that no one factor is dispositive. Sjomeling v. Lasser, 251 Or App 172, 188 (2012).

Area(s) of Law:
  • Family Law

State v. Jacob

A motion in limine does not preserve OEC 403 objections to specific testimony at trial. State v. Pergande, 270 Or App 280, 282-83, 348 P3d 245 (2015).

Area(s) of Law:
  • Evidence

State v. M.D.M.

The “well-settled principle” that an issue generally must be raised in the trial court to be considered on appeal “applie[s] equally to civil commitment cases.” State v. K.J.B., 282 Or App 862, 867-68 (2016), aff’d, 362 Or 777 (2018); see also State v. Wyatt, 331 Or 335 (2000).

Area(s) of Law:
  • Civil Procedure

State v. McLarrin

A confession alone is insufficient to convict a defendant, and even so, “there must be some proof, aside from the confession, as to the relevant facts.” State v. Chatelain, 347 Or 278, 287 (2009).

Area(s) of Law:
  • Evidence

State v. Portulano

The Fourth Amendment, as the Court articulated its requirements in Missouri v. McNeely, 569 US 141 (2013), requires the state to establish, under a totality of the circumstances approach, specific facts establishing exigency.

Area(s) of Law:
  • Criminal Law

State v. Riverman

A defendant “may be ordered to pay restitution for a victim’s objectively verifiable monetary losses, including ‘reasonable’ medical and hospital charges that were ‘necessarily incurred.’” State v. Dickinson, 298 Or App 679, 680 (2019); ORS 31.705; ORS 137.103(2)(a) (generally adopting the definition of “economic damages” in ORS 31.705).

Area(s) of Law:
  • Criminal Law

Wave Form Systems, Inc. v. Hanscom

Under Aguire v. Albertson’s, 201 Or App 31 (2005) and Restatement (Second) of Judgments § 26(1)(a), parties that acquiesce to a split claim “waive[] the ability to assert the defense of claim preclusion[,]” even in the context of sequential proceedings.

Area(s) of Law:
  • Civil Procedure

1000 Friends of Or. v. Clackamas Cnty.

Short-term rental use of "dwellings" and "residences" on resource land is neither explicitly nor implicitly permitted pursuant to state law.

Area(s) of Law:
  • Land Use

Dept. of Human Services v. T.B.-L

“To establish a basis for juvenile court jurisdiction for purposes of ORS 419B.100(1)(c), the state must prove, by a preponderance of the evidence, that a child’s welfare is endangered because, under the totality of the circumstances, there is a current threat of serious loss or injury to the child that is reasonably likely to be realized.” Dept. of Human Services v. K. C. F., 282 Or. App 12, 19 (2016).

Area(s) of Law:
  • Family Law

Harmon v. State of Oregon

“Several factors are commonly examined to determine if a particular duty can be considered judicial or quasi-judicial for the purpose of extending immunity to the official performing the action.” Praggastis v. Clackamas County, 305 Or 419, 426 (1988). Those factors include “whether the official’s actions are functionally comparable to judicial actions or involve decisions normally performed by judges in their judicial capacity, whether the action depends on legal opinions or discretionary judgments comparing the facts of a present situation with general legal questions, and whether the acts in question are primarily concerned with the official’s role as a judicial or quasi-judicial officer.” Id.

Area(s) of Law:
  • Tort Law

State v. Ochoa-Perez

ORS 162.315, resisting arrest, does not require that a defendant intentionally create a substantial risk of harm.

Area(s) of Law:
  • Criminal Procedure

State v. Travis

Courts should determine whether the evidence is relevant for non-propensity purpose(s) under OEC 404(3) and, if so, determine if the probative value outweighs the potentially prejudicial value under OEC 403. If evidence is not relevant for non-propensity purpose(s), then a trial court must determine if the evidence is relevant under OEC 404(4) and further weigh the probative versus prejudicial value pursuant to OEC 403.

Area(s) of Law:
  • Evidence

Dept. of Human Services v. A. H.

“In determining whether a parent was on notice that his or her progress would be assessed based upon particular facts, we look to the petition, the jurisdictional judgment, and documentation attached to the jurisdictional judgment providing the parent notice as to the conditions for reunification.” Dept. of Human Services v. C. E., 288 Or App 649, 656-57, 406 P3d 211 (2017).

Area(s) of Law:
  • Juvenile Law

Homes Assoc. of Cedar Hills v. Craig

If “a contract is ambiguous, and there is relevant competing extrinsic evidence to resolve the ambiguity, ascertaining the meaning of the contract involves a question of fact and the dispute over the contract’s meaning cannot be resolved on summary judgment.” Adair Homes, Inc. v. Dunn Carney, 262 Or App 273, 278 (2014). If there is no relevant competing extrinsic evidence, the court applies “established maxims of construction to determine the meaning of the disputed provisions.” Cryo-Tech, Inc. v. JKC Bend, LLC, 313 Or App 413, 423-24 (2021).

Area(s) of Law:
  • Contract Law

Martineau v. McKenzie-Willamette Medical Center

“[Jury i]nstructions which mislead or confuse are ground for a reversal or a new trial.” Estate of Michelle Schwarz v. Philip Morris Inc., 235 P3d 668, adh’d to on recons, 246 P3d 479 (2010) (quoting Williams et al. v. Portland Gen. Elec., 247 P2d 494 (1952).

Area(s) of Law:
  • Civil Procedure

McCorquodale v. Oxford House, Inc.

Under ORCP 15 D, a court “may, in its discretion, and upon any terms as may be just, allow any pleading to be made, or allow any motion after the time limited by the procedural rules.”

Area(s) of Law:
  • Arbitration

Shepard Investment Group LLC v. Ormandy

The legislature would have chosen specific language if it was their intention to allow a tenant to recover either one month’s rent or twice the amount wrongfully charged for each violation. Therefore, the tenant can recover twice the amount he was wrongfully charged for the entire year

Area(s) of Law:
  • Landlord Tenant

State v. Hilding

Defendant did not withhold attention from C because it was Defendant’s abusive attention that posed the safety risk. A person can not withhold necessary care from a dependent person by continuing to care for them.

Area(s) of Law:
  • Criminal Law

State v. Palacios-Romero

The less-satisfactory-evidence instruction is to be given when (1) “other evidence was reasonably available on a fact in issue” and (2) “there is a basis for the jury to conclude that the other evidence is a stronger and more satisfactory than the evidence offered,” and in determining whether a defendant knowingly and voluntarily waived the right to be present, the court can consider its own knowledge of what transpired during trial, defense counsel’s statements, the court’s own judicial experience in matters of this kind, and “a certain measure of common sense.” State v. West, 289 Or App 415, 418 (2017); State v. Harris, 291 Or 179, 185-86 (1981).

Area(s) of Law:
  • Criminal Procedure

July 15 summaries

Central Oregon Landwatch v. Deschutes County

ORS 215.284(2) “In counties not [within the Willamette Valley] a single-family residential dwelling not provided in conjunction with arm use may be established, subject to approval of the governing body or its designee, in any area zoned for exclusive farm use upon a finding that: (c) The dwelling will be sited on a lot or parcel created before January 1, 1993.”

Area(s) of Law:
  • Land Use

Dept. of Hum. Servs v. J. H.

ORS 419B.498(1)(a) requires DHS to file a petition to terminate parental rights and proceed with adoption when a child or ward has been in substitute care under the responsibility of the department for 15 months of the most recent 22 months unless some exception applies.

Area(s) of Law:
  • Juvenile Law

Dept. of Human Services v. R.C.

“When the permanency plan at the time of a permanency hearing is reunification, the juvenile court is authorized to change the plan away from reunification only if DHS proves that (1) it made reasonable efforts to make it possible for the child to be reunified with his or her parent and (2) notwithstanding those efforts, the parent’s progress was insufficient to make reunification possible.” ORS 419B.476(2)(a); Dept. of Human Services v. R. B., 263 Or App 735, 745 (2014).

Area(s) of Law:
  • Family Law

Frost v. State of Oregon

“After the response of the defendant to the petition, the court shall proceed to a hearing on the issues raised. If the defendant’s response is by demurrer or motion raising solely issues of law, the circuit court need not order that petitioner be present at such hearing, as long as petitioner is represented at the hearing by counsel. At the hearing upon issues raised by any other response, the circuit court shall order that petitioner be present.” ORS 138.620(1).

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

State v. McWoods

“To bring a Batson challenge,” defendant must first “make a prima facie showing that a peremptory strike was based on race or gender.” State v. Curry, 298 Or App 377, 381, (2019), adh’d to on recons, 302 Or App 640, 461 P3d 1106 (2020). “Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging . . . jurors within an arguably targeted class.” Id. at 382 (quoting Batson v. Kentucky, 476 US 79, 97 (1986)).

Area(s) of Law:
  • Criminal Procedure

State v. Moscote-Saavedra

ORS 161.067(3) states that the criminal acts “. . . must be separated from other such violations by a sufficient pause in the defendant’s criminal conduct to afford the defendant an opportunity to renounce the criminal intent.”

Area(s) of Law:
  • Sentencing

State v. Williams

Based on the factors in State v. Jarnagin, 351 Or 703, 716, 277 P3d 535 (2012), the State did not meet its burden to prove that Defendant’s consent to a DNA sample was not the result of the Miranda violation.

Area(s) of Law:
  • Criminal Procedure

State v. Meyers

"A statute is not vague simply because the state can choose to prosecute a person under different statutes with different penalties." United States v. Batchelder, 442 US 114, 123-26, (1979).

Area(s) of Law:
  • Constitutional Law

State v. Zielinski

“[E]vidence is relevant so long as it increases or decreases, even slightly, the probability of the existence of a fact that is of consequence to the determination of the action.” State v. Barone, 329 Or 210, 238, 986 P.2d 5 (1999).

Area(s) of Law:
  • Evidence

Williams v. Laney

“Another witness’s description of the complaining witness as a ‘victim’ conveys an opinion that the complaining witness is telling the truth.” State v. Sperou, 442 P.3d. 581 (2019).

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

A. B. v. The Oregon Clinic

Covered entities may disclose protected health information (PHI) without a patient’s consent to other covered entities where it is “necessary to prevent or lessen a serious and imminent threat” to a person or the public. 45 CFR § 164.512(j); see also ORS 192.558(2)(b) (allowing disclosure of PHI otherwise permitted or required by state or federal law).

Area(s) of Law:
  • Tort Law

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

In determining whether terminating a child’s legal relationship with a parent is in the child’s best interest, the following considerations are to be made: (1) the strength of the bond between the parent and child; (2) whether severing that bond will help or harm the child; (3) the benefits to the child of terminating parental rights; and (4) the risk of harm to the child posed by termination. Dept. of Human Services v. T. M. D., 365 Or 143, 163-66 (2019). The burden of proof as to what is in a child’s best interest is clear-and-convincing evidence. Id.

Area(s) of Law:
  • Family Law

Golden Rule Farms v. Water Resources Dept.

Where an agency provides a process for raising issues to it, the doctrine of exhaustion of administrative remedies requires a party to present the issue to the agency through that process before a court will consider it. Tuckenberry v. Board of Parole, 365 Or 640, 646 (2019).

Area(s) of Law:
  • Alternative Dispute Resolution

State v. Cave

Whether evidence is admitted as propensity evidence under OEC 404(4) or nonpropensity evidence under OEC 404(3) has a “significant effect” on the OEC 403 balancing test, as 404(4) propensity evidence’s prejudicial effect generally substantially outweighs its probative value. State v. Baughman, 361 Or 386, 405 (2017).

Area(s) of Law:
  • Evidence

State v. Wagner

“On appeal, defendant does not challenge the scientific validity and reliability of Dorsey’s testimony. The only issue on appeal related to Dorsey’s testimony is her qualification to offer proffered expert testimony under OEC 702.”

Area(s) of Law:
  • Evidence

August 20 summaries

Pringle Square, LLC v. Berrey Family, LLC

Equitable doctrines do not apply to legal claims made by defendants in interpleader actions.

Area(s) of Law:
  • Civil Procedure

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

An out-of-court statement is typically hearsay, and thus inadmissible, if it is offered to prove the truth of the matter it asserts. OEC 801(3); OEC 802. Evidentiary errors are harmless and do not warrant reversal “if there is little likelihood that the particular error affected the verdict.” Dept. of Human Services v. G. D. W., 353 Or 25, 39 (2012).

Area(s) of Law:
  • Family Law

In re Weatherspoon & Stevens

“The court shall not order joint custody, unless both parents agree to the terms and conditions of the order” ORS 107.169(3)

Area(s) of Law:
  • Family Law

Johnson and Henderson Partnership v. Henderson

The party alleging that a partnership exists must show that there is “some evidence” of some of the factors in ORS 67.055(4)(a) for the factfinder to find that a partnership exists, and the question of “whether a partnership exists based on the evidence in the record will usually be a question for the jury.” Wirth v. Sierra Cascade, LLC 234 Or App 740, 761-65 (2010).

Area(s) of Law:
  • Business Law

State v. Pyle

Article I, section 11, of the Oregon Constitution provides a defendant with a right to “have compulsory process for obtaining witnesses in his favor,” and unless an otherwise lawful subpoena is quashed or modified by the trial court, it must be given effect.

Area(s) of Law:
  • Criminal Procedure

Bohr v. Tillamook County Creamery Assn.

Plaintiff must prove they purchased the product in reliance on the alleged false marketing, pursuant to ORS 646.608 (b) and (d). A business engages in unlawful practice if it, “(b) causes likelihood of confusion or of misunderstanding as to the source of goods, and (d) uses deceptive representations or designations of geographic origin in connection with goods.”

Area(s) of Law:
  • Business Law

Eaton

ORCP 12 A provides that “[a]ll pleadings shall be liberally construed with a view of substantial justice between the parties.” ORCP 12 B provides that “[t]he court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party.”

Area(s) of Law:
  • Civil Procedure

Hanley Engineering v. Weitz & Company

The Full Faith and Credit Clause requires a valid final judgment in one state, rendered by a court with jurisdiction over a person and subject matter governed by the judgment be recognized in all states. However, it does not require states to adopt practices of other states regarding enforcement for judgments.

Area(s) of Law:
  • Civil Procedure

K. R. M. v. Baker

ORS 107.716(3)(a) provides that a court may continue a FAPA order if the court determines that: “(B) The petitioner reasonably fears for the petitioner’s physical safety” and ORS107.104(1)(b)(2) provides an exception to enforcing a stipulated agreement when enforcement “would clearly contravene public policy.”

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

Marteeny v. Brown

Under ORS 144.650, “[w]hen an application for a pardon, commutation, or remission is made to the Governor, a copy of the application . . . shall be served upon: (a) [t]he district attorney . . . [and] the district attorney . . . shall (a) [n]otify the victim of the crime.”

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

Nationstar Mortgage, LLC v. Hinkle

“In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party.” ORCP 34 E.

Area(s) of Law:
  • Civil Procedure

State v. Hoffman

Medical reports containing blood alcohol results are not self-authenticating and requires a witness to testify as to the medical blood draws chain of custody or proper authentication. State v. Martin, 207 Or App 31, 41 (2020).

Area(s) of Law:
  • Criminal Law

State v. Tow

Under ORS 162.315(2)(c), “‘Resists’ means the use or threatened use of violence . . . or any other means that creates a substantial risk of physical injury to any person and includes . . . behavior clearly intended to prevent being taken into custody.”

Area(s) of Law:
  • Criminal Law

State v. Hershey

Article I, section 17 of the Oregon Constitution guarantees the right to a jury trial in civil cases that historically used jury trials before the Oregon Constitution was enacted and “cases ‘of like nature.’” Horton v. Or. Health & Sci. Univ., 376 P3d 998 (Or. 2016).

Area(s) of Law:
  • Civil Procedure

State v. Omar

“If [a] trial court determines that the record could have developed in a materially different way if the error had not occurred, then a defendant is entitled to a new trial.” State v. Hightower, 368 Or 378, 387 (2021).

Area(s) of Law:
  • Criminal Procedure

Torres v. SAIF

An injury is compensable when it arises “out of and in the course of employment requiring medical services or resulting in disability or death” and “if the work is a mate­rial contributing cause of the injury.” ORS 656.005(7)(a); Coleman v. SAIF, 203 Or App 442, 446 (2005). “However, when an otherwise compensable injury combines with a preexisting condition to cause or prolong a disability or the need for treatment, the combined condition is compen­sable only if the otherwise compensable injury is the major contributing cause of the disability or need for treatment.” SAIF v. Harrison, 299 Or App 104, 106 (2019) (citing ORS 656.005(7)(a)(B)).

Area(s) of Law:
  • Workers Compensation

Towey v. City of Hood River

"LUBA is entitled to deference in the interpretation of its own administrative rule[s] if its interpretation is plausible and not inconsistent with the rule, the rule’s context, or any other source of law.” Maguire v. Clackamas County, 250 Or App 146, 162 (2012).

Area(s) of Law:
  • Administrative Law

Anthony V. Albertazzi, P. C. v. Jones

ORS 82.010(2) applies to all judgments; an arbitration award is not a “judgment” as contemplated by the statute.

Area(s) of Law:
  • Remedies

Justice v. Vercher

The courts will reconsider a common-law rule or doctrine when (1) “an earlier case was inadequately considered or wrong when it was decided,” (2) “surrounding statutory law or regulations have altered some essential legal element assumed in the earlier case,” or (3) “the earlier rule was grounded in and tailored to specific factual conditions and some essential factual assumptions of the rule have changed.” G. L. v. Kaiser Foundation Hospitals, Inc., 306 Or 54, 59 (1988).

Area(s) of Law:
  • Standing

Morrison v. Chierichetti

ORS 107.105 ultimately requires courts to distribute marital assets as may be just and proper under all the circumstances, and this inquiry must consider factors such as the preservation of assets; the achievement of economic self-sufficiency for both spouses; the particular needs of the parties and their children; and the extent to which a party has integrated a separately acquired asset into the common financial affairs of the parties through commingling. Fuernsteiner-Perin and Perin, 211 Or App 23, 31 (2007); Kunze and Kunze, 337 Or 122, 136 (2004).

Area(s) of Law:
  • Family Law

September 5 summaries

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

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

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