January 27 summaries
Dept. of Human Services v. G.J.R.
A juvenile court has jurisdiction in a case on an additional allegation if there is sufficient evidence, from which a reasonable fact-finder could conclude by a preponderance of the evidence, either that a current risk of harm to the child exists from the additional allegation standing alone, or that the additional allegation contributes to or enhances the risk associated with the already established bases of jurisdiction.
Area(s) of Law:- Juvenile Law
OR-OSHA v. CBI Services, Inc.
To determine whether an employer is guilty of a "serious violation" under ORS 654.086(2) by means of constructive knowledge and its employee's action, the relevant inquiry is not whether an employer could have known, with reasonable diligence, of the violation, but rather should the employer have known of the violation.
Area(s) of Law:- Employment Law
PIH Beaverton, LLC v. Super One, Inc.
Under ORS 12.135(3), an improvement to real property is considered substantially complete when the contractee has accepted the completion in writing or when a contractee has accepted construction that actually has been completed.
Area(s) of Law:- Contract Law
State v. Johnson
Under ORS 138.690, a criminal defendant lacks the right to appeal a trial court's order dismissing his motion requesting DNA evidence.
Area(s) of Law:- Appellate Procedure
State v. Marshall
Voluntary consent to a search will not be found where a reasonable person would believe that a promise of immunity from prosecution would result from their consent.
Area(s) of Law:- Criminal Procedure
State v. Murr
Under ORS 135.747, “period of time” to bring a defendant to trial begins when the information is filed with the court and not with the service of citations.
Area(s) of Law:- Criminal Procedure
City of Harrisburg v. Leigh
In a judgment award for fixtures placed by a trespassing city onto an owner's property to the owner, when the city condemns the property, the value of the improvements and fixtures must be included in the fair market value assessment of the condemnation proceeding.
Area(s) of Law:- Land Use
Holbrook v. Blacketter
Under OEC 401, testimony of trial counsel is not irrelevant merely because the Supreme Court reversed a decision of the Bar trial panel.
Area(s) of Law:- Post-Conviction Relief
State v. Beck
A conviction under “criminally negligent homicide” encompasses the former crime of “negligent homicide” and cannot be set aside regardless of satisfaction of the other requirements for setting aside previous convictions.
Area(s) of Law:- Criminal Law
State v. Maciel
An officer has reasonable suspicion to stop a person when the officer subjectively believes the person has committed a crime and that belief is objectively reasonable in the totality of the circumstances. Reasonable suspicion must be based on specific articulable facts of the crime suspected to be objectively reasonable.
Area(s) of Law:- Criminal Procedure
State v. Miller
Judicial review on whether there was probable cause to issue a warrant is limited to a determination of whether the issuing judge could have reasonably concluded the affidavit established probable cause, given the facts and reasonable inferences.
Area(s) of Law:- Criminal Law
State v. Weiner
Under the unavoidable lull rule, it is not an unconstitutional seizure for an officer to make inquiries unrelated to a traffic stop while that officer is waiting for the results of a records check, so long as those inquiries do not unlawfully expand the stop.
Area(s) of Law:- Criminal Procedure
Thomas v. Dept. of Land Conservation and Development
Private real property that is owned by the same owner is "contiguous" for purposes of Measure 49, regardless of whether or not the lots designated for proposed development are connected by a common border. If each lot is connected by property owned by the same person, it is contiguous property.
Area(s) of Law:- Property Law
Three Rivers Education Association v. Three Rivers School District
An order fails substantial reason if finding no causal connection between two decisions while also finding one decision to be the impact of the other.
Area(s) of Law:- Administrative Law
Tran v. Board of Chiropractic Examiners
ORS 684.100 authorizes the Board of Chiropractic Examiners to (1) discipline individuals practicing chiropractic without a license, and (2) impose up to $10,000 in civil penalties per violation.
Area(s) of Law:- Administrative Law
Walker v. D.M.V.
Under ORS 813.440(1)(d) "illness" is a condition of the body or mind impeding an officer's attendance at a hearing and exhaustion can constitute "illness" where it caused the belief that he was not well enough to drive to the hearing.
Area(s) of Law:- Administrative Law
Campbell v. State
An inmate is not eligible to receive "good time" credit for his first sentence, under ORS 421.120, when he is serving consecutive sentences. Also, a date set for when an inmate is eligible for parole is not a reduction of his sentence.
Area(s) of Law:- Parole and Post-Prison Supervision
Franklin v. Employment Dept.
When a claimant, during a negotiated resolution, has agreed to a stipulated order with her employer in which she agrees to a temporary suspension of her license, misconduct has not occurred as defined by ORS 657.610(4).
Area(s) of Law:- Employment Law
Garner v. Taylor
A trial court cannot, on its own motion, set aside a prior judgment of visitation rights absent extraordinary circumstances.
Area(s) of Law:- Family Law
Ogle v. Nooth
Under ORS 138.580, documentation attached to a post-conviction petition are sufficient as long as they verify, corroborate, or substantiate the claims made in the petition that the petitioner aims to prove.
Area(s) of Law:- Post-Conviction Relief
Ross v. Franke
ORS 138.580 requires a petitioner to attach documentary evidence to support allegations in his petition.
Area(s) of Law:- Post-Conviction Relief
State v. A.J.C.
According to "State v. M.A.D." the determination for what is reasonable under a school-safety search depends on the nature of the safety threat. If the search is determined reasonable, then it is not a violation of a student's rights under Article 1, section 9 of the Oregon Constitution.
Area(s) of Law:- Criminal Procedure
State v. Nelson
A motion for relief from default order from the Circuit Court does not qualify as an appealable order under ORS 138.053.
Area(s) of Law:- Appellate Procedure
State v. Wesley
The doctrine of transferred intent exists for murder in Oregon despite it not having been codified in the Oregon Revised Statutes. Also, when determining the reliability of an eyewitness identification, it is proper for the Court to apply the test put forth by the Supreme Court in Lawson/James and analyze system and estimator variables.
Area(s) of Law:- Criminal Law
Uhl v. Krupsky
The statutory requirement under ORS 105.620 requiring an "honest belief of actual ownership" for claims of adverse possession does not apply to parties extinguishing an easement across their land through adverse possession.
Area(s) of Law:- Property Law
Walker v. Providence Health System Oregon
Pursuant to ORS 656.268(5)(d), an employer must respond to a request for claims closure within 10 days, and failure to respond will result in a penalty equal to 25 percent of the benefits the employee is determined to be entitled to.
Area(s) of Law:- Workers Compensation
Wood Park Terrace Apartments Limited Partnership v. Tri-Vest, LLC
Under Oregon contract law, the statute of limitations for negligence claims begins to accrue at the moment established in the contract.
Area(s) of Law:- Contract Law
February 36 summaries
Cavitt v. Coursey
Under ORS 138.580, "documentary evidence" is satisfied by an affidavit in support of a Petitioner's claim for post-conviction, and is enough evidence to support a claim for relief in Petitioner's claim for post-conviction relief.
Area(s) of Law:- Post-Conviction Relief
Cron v. Zimmer
An agreement is not fully integrated, and the parol evidence rule does not bar evidence of prior oral agreements, if the prior oral agreement is consistent with the subsequent writing and the prior oral agreement is the kind of agreement that would naturally be made separately from the writing.
Area(s) of Law:- Contract Law
Deberry v. Summers
Trial court did not err in granting summary judgment in favor of defendant-attorney after he filed a motion under ORCP 47 E because the witness plaintiff planned to call had no personal knowledge of the events; therefore no genuine issue of material fact existed, and summary judgment was proper.
Area(s) of Law:- Civil Procedure
Dept. of Human Services v. N. P.
A juvenile court may not continue a wardship if the jurisdictional facts on which it is based have ceased to exist.
Area(s) of Law:- Juvenile Law
Gearhart v. Public Utilities Commission of Oregon
Unless a court gives direction to the contrary, an agency has discretion to act within its authority, as granted by the legislature.
Area(s) of Law:- Administrative Law
State v. Aitken
Under ORS 161.067(3), criminal violations involving the same conduct against the same victim will merge unless the violations can be separated by a sufficient pause in the defendant's criminal conduct that would allow an opportunity to renounce the criminal intent.
Area(s) of Law:- Criminal Law
State v. Cam
Posting signs identifying one’s property as “private” is insufficient in manifesting a clear intent to exclude casual visitors and therefore evidence obtained from police observations may be admitted.
Area(s) of Law:- Criminal Law
State v. Molette
To establish plain error, a defendant must establish that a point of law is obvious, not merely that a point of law is reasonably disputed.
Area(s) of Law:- Criminal Procedure
State v. Roberts
A plea of no contest to a municipal violation constitutes a conviction for purposes of expunction under ORS 137.225(5)(e)
Area(s) of Law:- Post-Conviction Relief
State v. Stephens
Evidence of uncharged incidents of sexual conduct between the victim and the defendant are admissible under OEC 404(4).
Area(s) of Law:- Evidence
Topaz v. Board of Examiners for Engineering
Signing a complaint as "P.E." for professional engineer, when one lacks an active license, in a complaint regarding a public body's sewer rehabilitation plans is enough to constitute a violation of Oregon's professional engineering statute, because there is no mens rea requirement in ORS 672.045.
Area(s) of Law:- Civil Law
Grabhorn Inc v. Washington County
Courts may not decide land use decisions unless they fall into the exceptions listed in ORS 197.015(b). ORS 197.825 gives Land Use Board of Appeals exclusive jurisdiction over land use decisions.
Area(s) of Law:- Land Use
Byers v. Premo
Petitioner must prove by a preponderance of the evidence that his counsel failed to exercise reasonable professional skill and judgment, and that petitioner suffered prejudice as a result. While petitioner satisfied the first prong when his counsel failed to tell him that by stipulating to facts at trial, he could face consecutive sentences, he failed to prove that but for counsel's advice, he would not have agreed to a stipulated facts trial.
Area(s) of Law:- Post-Conviction Relief
Endres v. DMV
On judicial review of a final administrative order, the Court of Appeals reviews whether the order is supported by substantial evidence in the record.
Area(s) of Law:- Administrative Law
Hughes v. City of Portland
Under ORS 30.275, the tort claims notice requirement, reimbursement to an insurance company counts as partial payment towards plaintiff's claim.
Area(s) of Law:- Tort Law
Malpass and Malpass
The proper calculation of the marital portion of husband's pension should use a fraction of the entire actual pension, not a hypothetical pension, and adjust the wife's survivor benefits.
Area(s) of Law:- Family Law
Papworth v. DLCD
Under Section 6(6)(f) of Measure 49, a landowner is not allowed to build more home sites on her property if, at the owner's acquisition date, the zoning ordinance did not allow for the establishment of more dwellings even if a "sunset provision" was present in the zoning ordinance.
Area(s) of Law:- Land Use
State v. Cluver
Criminal defendants are entitled to have lesser-included offenses included in jury instructions despite the likelihood of being convicted of the greater offense.
Area(s) of Law:- Criminal Procedure
State v. Gilbert
For a jury trial to be properly waived, the defendant must act knowingly and voluntarily and mere reference to such a waiver in the record is not sufficient.
Area(s) of Law:- Criminal Procedure
State v. Pirtle
To fall within the automobile exception to the warrant requirement, the automobile must be mobile at the time the police discover that it was connected with a crime.
Area(s) of Law:- Criminal Procedure
State v. Preuitt
An expert witness may not testify as to the credibility of another witness. An expert may testify to matters that would assist a jury in reaching a conclusion, but may not include her own conclusions as to the witness' truthfulness.
Area(s) of Law:- Evidence
Tilton v. Lee
Under ORS 116.103, reduction of a requested attorney fee award by a trial court does not constitute an objection in an estate proceeding.
Area(s) of Law:- Attorney Fees
Underwood and Mallory
An error will not be reversed on appeal when the party alleging the error was instrumental in bringing it about.
Area(s) of Law:- Appellate Procedure
Dept. of Human Services v. M.E.
Under ORS 419B.100(1)(c), the juvenile court has jurisdiction when conditions and circumstances are such that the welfare of the children is endangered. The trial court's decision is reviewed de novo, and is measured by the totality of the circumstances.
Area(s) of Law:- Juvenile Law
Herring v. American Medical Response Northwest
"Vulnerable person" under ORS 124.100 includes a temporary incapacitated person. ORS 124.100(2)(b) unambiguously requires the court to triple noneconomic damages resulting from physical abuse.
Area(s) of Law:- Remedies
Hostetter v. Board of Parole and Post-Prison Supervision
Under OAR 253-11-004(3), the maximum term of incarceration that may be imposed for any single violation is 90 days for a technical violation, and 180 days for conduct constituting a crime.
Area(s) of Law:- Parole and Post-Prison Supervision
Singh v. McLaughlin
A directed verdict by the trial court will be reversed and remanded by the Court of Appeals if the Court find that the plaintiff presented enough evidence for his claims to be evaluated by a jury.
Area(s) of Law:- Civil Procedure
State v. Pugh
A person duplicates a sexually explicit image for purposes of ORS 163.684 when he or she downloads it on their personal computer. In addition, venue is proper in the county in which the download took place.
Area(s) of Law:- Criminal Law
Brownstone Homes Condominium Ass'n v. Brownstone Forest Heights, LCC
If a plaintiff engages in a settlement agreement with a defendant that includes a nonexecution covenant releasing the defendant, any assignment of rights by the defendant for claims against defendant's insurer will be subject to the Stubblefield Rule.
Area(s) of Law:- Insurance Law
Doughton v. Morrow
Under ORS 12.110, the statute of limitations does not begin to run at the time of discovery of facts that serve only as a trigger a duty to inquire about whether an injury has occurred. For a claim to relate back to the date of the original complaint, the original complaint must put the reasonable defendant on notice of such an additional basis of liability.
Area(s) of Law:- Civil Procedure
RJ Enterprises LLC of Oregon v. DCBS
A person subject to the employer’s direction, control, and who provides services for remuneration is a subject worker within the meaning of workers' compensation law.
Area(s) of Law:- Workers Compensation
State v. Ehrensing
The evidence return provisions of the Oregon Revised Statutes require that the person the evidence is returned to be lawfully entitled to possess the evidence. Because possessing marijuana is illegal under federal law, the statute does not require it be returned to a defendant.
Area(s) of Law:- Criminal Law
State v. McGee
When applying ORS 135.747 in a motion to dismiss for lack of a speedy trial, the Court uses a two-step approach. First, the Court determines the total amount of delay and subtracts any delay caused by Defendant's application or consent. Second, the Court determines whether the remaining delay is reasonable.
Area(s) of Law:- Criminal Procedure
State v. Pinard
Where the defendant does not raise a merger argument at the trial court, he must establish plain error that is apparent on the record and it must be such that the "legal point is obvious, not reasonably in dispute."
Area(s) of Law:- Appellate Procedure
State v. Stookey
Violating ORS 815.020(1)(a) requires a vehicle to be so sufficiently unsafe that its occupants face a danger of probable harm or loss. A horizontal crack in defendant's windshield did not "endanger any person" under ORS 815.020 and therefore the officer's objective belief was not reasonable.
Area(s) of Law:- Criminal Procedure
Tracy v. Nooth
A court may allow reconsideration to clarify its disposition.
Area(s) of Law:- Appellate Procedure
March 23 summaries
Dept. of Human Services v. A. D.
A juvenile court's order of adoption rather than reunification will be upheld where it is established on the record that DHS made a reasonable effort at reunification and that the parents will not be able to make the progress necessary in order for the child to be returned to the home in a reasonable amount of time.
Area(s) of Law:- Juvenile Law
State v. Painter
Admission of evidence that is qualitatively different than the evidence the jury was required to hear on a direct issue of the case causes harmful error.
Area(s) of Law:- Evidence
State v. Plew
Where a defendant requests counsel when being interrogated about a crime, and is interrogated by the police about a separate crime that is factually, temporally, and territorially similar, counsel must be present for both interrogations.
Area(s) of Law:- Criminal Procedure
State v. White
A defendant's appeal of supplemental judgment is timely when the 30-day appeal period under ORS 138.071(4) does not start running until actual notice of the supplemental judgment being entered has been received by the defendant or his counsel.
Area(s) of Law:- Appellate Procedure
ZRZ Realty Company v. Beneficial Fire and Casualty Insurance
Pursuant to ORS 742.061 (Recovery of attorney fees in action on policy or contractors bond): Once an insured obtains recovery that exceeds the insurer's tender, the insured is entitled to recover all of its attorney fees incurred in litigating the policy, including coverage issues; the proper standard against which attorney fees are measured is "reasonableness;" the lodestar method of calculating attorney fees is a common practice and is reasonable; and, lastly, unlike the duty to defend, which is a shared obligation that arises independent of completed litigation, liability for attorney fees under ORS 742.061 is a statutory obligation that arises only after the insured prevails at trial.
Area(s) of Law:- Insurance Law
Dial Temporary Help Service v. DLF Int'l Seeds
In a breach of contract claim, ambiguity alone does not make summary judgment inappropriate, rather, a triable factual issue stemming from the existence of competing extrinsic evidence does.
Area(s) of Law:- Contract Law
Saldana-Ramirez v. State of Oregon
Defendant's Padilla-based post-conviction claim could not stand because Padilla was decided after he was convicted, and it does not apply retroactively.
Area(s) of Law:- Criminal Procedure
State v. Alexander
An offer by the State to Defendant that it "might" impose an upward durational departure beyond the statutory maximum sentence, without mention of the specific enhancement fact, did not satisfy the notice requirements in ORS 136.765(2).
Area(s) of Law:- Sentencing
State v. Ferry
The Court may not reach an argument on appeal that was not preserved at trial.
Area(s) of Law:- Appellate Procedure
State v. Gerlach
The antimerger statute does not apply to multiple counts of kidnapping where the defendant continues to substantially interfere with the victim's liberty. The kidnapping continues as long as the seizure of the victim continues.
Area(s) of Law:- Criminal Law
Friends of Yamhill County v. Yamhill County
A farm-use-related commercial activity is a conditional use, determined by the county on a case-by-case basis, instead of a permitted use under ORS 215.283(1)(n).
Area(s) of Law:- Land Use
Dept. of Human Services v. F.L.B
Termination of mother's parental rights is appropriate under ORS 419B.504 when the state proves by clear and convincing evidence that the mother is unfit to provide her children with a safe home and not likely to be able to provide her children with a safe home within a reasonable time because of her own mental illness and incarceration.
Area(s) of Law:- Juvenile Law
Dexter Lost Valley Community Assn. v. Lane County
ORS 197.830(13)(b) prohibits a state or local government from withdrawing a decision after the date set for filing the record.
Area(s) of Law:- Land Use
Hale v. Belleque
When an element of a crime depends on the specific crime that a defendant intends to commit, at least 10 of the same jurors must concur on the underlying crime that the defendant intended to commit before the defendant can be convicted.
Area(s) of Law:- Criminal Procedure
State v. Hickman
Lawson/James test determines reliability of eyewitness identification evidence in Oregon.
Area(s) of Law:- Evidence
Dept. of Human Services v. J. F. D.
Under ORS 419B.340(1), DHS's reasonable efforts at the dispositional stage must be assessed as to each parent.
Area(s) of Law:- Juvenile Law
Fostveit v. Poplin
A trial court does not err when it properly weighs the evidence on the record, and find that a party substantially performed on the contract.
Area(s) of Law:- Contract Law
Miller v. City of Portland
Under the doctrine of exhaustion, for an aggrieved party to exhaust its administrative remedies, an administrative remedy must be available and it must adequately serve the aggrieved party's interests.
Area(s) of Law:- Administrative Law
SAIF Corp. v. Satterfield
A report issued a year after injury indicating increased functioning is new information under OAR 436-120-0350.
Area(s) of Law:- Workers Compensation
State v. Engerseth
Pursuant to ORS 136.773(1), a trial court's failure to receive a written waiver for a jury trial does not create a prejudicial error if defendant previously stipulated to the sentencing enhancement.
Area(s) of Law:- Sentencing
State v. Jones
Harmless error results when evidence of prior bad acts is admitted but specifically not used in forming the basis of the verdict.
Area(s) of Law:- Evidence
State v. Pinckney
"Use" under ORS 166.220(1)(a) includes both physical force and the threat of physical force, and a trial court does not err when it rejects a proposed jury instruction that states that "use" includes only actual force.
Area(s) of Law:- Criminal Law
State v. Valle
Evidence is admissible as relevant impeachment evidence when it supports an inference that a witness had a personal interest or bias to testify in a particular manner.
Area(s) of Law:- Evidence
April 34 summaries
Hatley v. Umatilla County
An ordinance must specifically seek to protect Goal 5 resources for it to be subject to the state's regulations regarding amending land-use plans. Also, when an ordinance is rejected by LUBA and a similar, but not identical one, is enacted by the local government, one challenging the ordinance has not waived any arguments or objections to the ordinance because the new challenge is a separate proceeding and not subject to waiver or preclusion.
Area(s) of Law:- Land Use
Krisor v. Henry
A case becomes moot when substantive remedy sought would no longer have a practical effect on the injured's rights.
Area(s) of Law:- Standing
Re. v. PERS
The Court of Appeals will not directly or indirectly overrule Supreme Court Case Law.
Area(s) of Law:- Administrative Law
State v. Lopez-Cruz
An expert’s diagnosis of “abuse”, in the absence of physical evidence to corroborate that diagnosis, amounts to an impermissible comment on the credibility of the patient.
Area(s) of Law:- Criminal Law
State v. Reed
Under ORS 161.067, the antimerger statute applies if the criminal violations were (1) completed before the next violation began, and (2) there was a significant pause between each attempt, affording the defendant the opportunity to renounce his criminal intent.
Area(s) of Law:- Criminal Law
State v. Tovar
Statements made by a defendant after being unlawfully seized must be suppressed.
Area(s) of Law:- Criminal Procedure
Greer v. Ace Hardware Corp.
In a claim against asbestos manufacturers, a plaintiff must proffer evidence showing both the specific products used and specific instances of their use.
Area(s) of Law:- Tort Law
James v. Clackamas County
A contract right to payment from a specified fund ceases to exist when that right is contingent upon money contained in that fund and that money is exhausted.
Area(s) of Law:- Contract Law
AGAT Transport Inc. v. Employment Department
In assessing unemployment tax, the Employment Department looks to ORS 670.600 to determine if a person qualifies as an independent contractor.
Area(s) of Law:- Tax Law
Department of Human Services v. K. H.
No due process violation results when a court limits submission of evidence to an offer of proof, and then decides based on that evidence that a further evidentiary hearing is unnecessary.
Area(s) of Law:- Juvenile Law
Dept. of Human Services v. M. H.
Under ORS 109.741(3), personal jurisdiction over a child is not required for a court to have jurisdiction over a matter concerning the custody of the child, including dependency jurisdiction. Under ORS 419B.100, the totality of evidence can be used to grant subject matter jurisdiction, even if every element is not met.
Area(s) of Law:- Family Law
Hamilton . SAIF Corportaion
An employer's requirement that an employee stand on a hard floor does not significantly increase the risk of injury, and, therefore, by itself, cannot prove a causal nexus between employment conditions and injuries resulting from falling down.
Area(s) of Law:- Workers Compensation
Krisor v. Lake County Fair Board
A court may apply a transactional approach to determine claim preclusion and separate related claims when they are not connected by the same factual transaction.
Area(s) of Law:- Employment Law
McKinnon v. McKinnon
Minor changes in monthly income does not constitute a substantial change in circumstances for the purpose of assessing spousal support obligations.
Area(s) of Law:- Family Law
Silberman-Doney v. Gargan
Under ORCP 64B(1), to prevail on a motion for new trial due to an irregularity in the court's proceedings, the proponent must show the court deviated from an established rule or practice.
Area(s) of Law:- Civil Procedure
State v. Cam
Questions of fact not raised at the trial court level will, on reconsideration, be viewed as consistent with the trial court's ultimate conclusion.
Area(s) of Law:- Appellate Procedure
State v. Collins
Courts now should utilize the Lawson/James test for determining the admissibility of in court and out of court identifications.
Area(s) of Law:- Criminal Procedure
State v. Hooper
A trial court's statement to counsel that there is, "no issue here as to venue," in the presence of the jury is not an abuse of discretion where the jury is otherwise instructed that venue is a material element.
Area(s) of Law:- Criminal Procedure
State v. Mather
Under ORS 162.205, a person is considered to be released from a “correctional facility” when the release agreement from the pretrial services office is signed.
Area(s) of Law:- Criminal Law
State v. McClure
Taking a person into custody for a parole violation constitutes an "arrest" for the purposes of the resisting arrest statute, ORS 162.315.
Area(s) of Law:- Criminal Procedure
State v. Middleton
The jury is presumed to have followed the Court's instructions to disregard testimony, absent a high probability that they would be unable to do so.
Area(s) of Law:- Evidence
State v. Montgomery
An argument on appeal that is qualitatively different from the one presented at trial is not preserved for review. A denial for a motion of acquittal can be based on circumstantial evidence that allows a rational trier of fact to find the elements of the crime beyond a reasonable doubt.
Area(s) of Law:- Appellate Procedure
Whalen v. American Medical Response Northwest, Inc.
Under ORCP 47 E, expert testimony referred to in an affidavit may create a genuine dispute of fact, even when that information is very limited. Under ORS 12.110, the "discovery rule" applies to battery charges, beginning the two year statute of limitations from when the battery is reasonably discoverable.
Area(s) of Law:- Civil Procedure
Dept. of Human Services v. J. R. L
A juvenile court cannot rely on facts extrinsic to the jurisdictional judgment in determining the basis for continuing jurisdiction.
Area(s) of Law:- Juvenile Law
Dow and Dow
In modifying a stipulated judgment of dissolution, a provision that does not contravene public policy or the law does not limit a court's ability to modify it. Additionally, a change of circumstances initiating modification can be the product of either party.
Area(s) of Law:- Family Law
Herald and Steadman
Under ORS 107.105(1)(f), division of marital property at divorce must be just and proper manner in all the circumstances.
Area(s) of Law:- Family Law
McPhillips Farm, Inc. v. Yamhill County
A Land Use Compatibility Statement is not a "land use decision" when it permits modification of a feature that is encompassed by a previous land use decision. Accordingly, the Land Use Board of Appeals does not have jurisdiction to review the Land Use Compatibility Statement.
Area(s) of Law:- Land Use
Miller v. Jones
An easement will be found when the agreement between the parties shows the intent to do so. An easement will be appurtenant so long as there is no contrary intent and the dominant estate is identified.
Area(s) of Law:- Property Law
State v. Bertha
Mere acquiescence to an officer's command does not amount to consent to search a home without a warrant.
Area(s) of Law:- Criminal Procedure
State v. Clark
When a mental state of recklessness is required, a jury instruction laying out elements of reasonable driving is not irrelevant to the jury in determining whether a defendant disregarded reasonable risks of driving.
Area(s) of Law:- Evidence
State v. Erb
Under Article I, Section 11, of the Oregon Constitution, a waiver of the right to counsel must be voluntarily and intelligently made.
Area(s) of Law:- Criminal Procedure
State v. Hernandez
The State need only present sufficient evidence from which a rational trier of fact could draw an inference that a charged crime had occurred.
Area(s) of Law:- Evidence
State v. Petterson
After the appearance of new information which vitiates probable cause, an investigation must cease.
Area(s) of Law:- Criminal Procedure
State v. Saechao
Consecutive minimum sentences are plain error which are properly remanded for resentencing if there is no indication that the trial court will necessarily keep intact the total aggregate sentence.
Area(s) of Law:- Sentencing
May 43 summaries
State v. Hemenway
When considering equitable factors to determine whether a vacatur is an appropriate remedy, the factor that a party caused the mootness by their own involuntary action, such as death during an appeal, should weigh in favor of vacatur.
Area(s) of Law:- Civil Procedure
Wah Chang v. PUC
Administrative agency retains broad authority under ORS 757.230 in determining the formula for ratemaking based upon the effect of special contracts on private customers and may rely upon investigative reports and filings by agency staff in so doing.
Area(s) of Law:- Administrative Law
State v. Ofodrinwa
Pursuant to ORS 163.425, a person commits the crime of second-degree sexual abuse when "that person subjects another person to sexual intercourse and the victim does not consent thereto." The phrase "does not consent" refers to the victim's lack of capacity to consent due to age, as well as to the lack of actual consent.
Area(s) of Law:- Criminal Law
Davenport v. Premo
An appeal is moot when an inmate seeks habeas corpus relief, is subsequently transferred to a correctional facility out of state, and cannot demonstrate that the appeal would have a practical effect on his rights.
Area(s) of Law:- Standing
N.J.R. v. Kore
The Court of Appeals lacks jurisdiction to hear an appeal of a dismissal of a FAPA violation when no substantial right has been affected. An SPO may only be given if requested as a remedy in civil action, or when a person complains to a law enforcement officer and that officer gives a citation with specific notice, not sua sponte.
Area(s) of Law:- Family Abuse Prevention Act
State v. Haney
Under ORS 161.067(2), two owners, are treated as a single owner, for the purposes of determining the number of separately punishable offenses, when they own joint interests in a vehicle.
Area(s) of Law:- Criminal Law
State v. Monro
The "shift-to-column-I" rule is subject to Measure 11 when a Measure 11 sentence is imposed consecutively with another offense. Where a sentencing conflict between "shift-to-column-I" and Measure 11 exists, the sentence shall be the greater of the two prescribed regimes.
Area(s) of Law:- Sentencing
State v. Palomo
A person will be convicted of prostitution under ORS 167.007 when sexual conduct is exchanged for something of economic value and the transaction is commercial in character.
Area(s) of Law:- Criminal Law
Balcom v. Knowledge Learning Enterprises
Pursuant to ORCP 5.45(1), for consideration on judicial review an argument must be preserved in the lower court proceedings. To properly preserve an argument for consideration upon judicial review a party must provide the trial court with a specific explanation of her objection so as to ensure that the trial court can clearly identify the alleged error.
Area(s) of Law:- Workers Compensation
Campbell v. Employment Department
An order by the EAB will be upheld if it is supported by substantial evidence and reason.
Area(s) of Law:- Employment Law
Dept. of Human Services v. A. J. M
Under ORS 419B.923(1)(a), a juvenile court has the authority to issue a “corrected permanency judgment” if the correction is for an oversight or omission. In addition, the court has authority to correct the judgement at any time.
Area(s) of Law:- Juvenile Law
Dept. of Human Services v. A. R. S.
A juvenile court may not continue wardship over a child or change the permanency plan for the child from reunification to adoption based on conditions or circumstances that are not explicitly stated or fairly implied by the jurisdictional judgment.
Area(s) of Law:- Juvenile Law
Doyle v. City of Medford
ORS 243.303(2) does not create a private right of action for damages.
Area(s) of Law:- Municipal Law
Kaptur and Kaptur
An issue may be considered on appeal as long as the appealing party raised the issue below with enough particularity to assure that the trial court can identify its alleged error and correct the error if it is warranted
Area(s) of Law:- Appellate Procedure
Marton v. Ater Construction Co., LLC
A party who enters into a settlement with a claimant is not entitled to recover contribution or indemnity from a third-party whose liability is not extinguished by the settlement.
Area(s) of Law:- Civil Procedure
PacifiCorp v. SimplexGrinnell
ORS 20.096 does not create a reciprocal right to recover attorney fees when an indemnification agreement in the contract does not allow one party to recover attorney fees from the other.
Area(s) of Law:- Attorney Fees
Paton v. American Family Mutual Ins. Co
An insurance company's express consent to the arbitration process suffices to "formally institute" arbitration proceedings under ORS 742.504(12)(a)(B).
Area(s) of Law:- Insurance Law
Schutz v. La Costita III, Inc.
ORS 471.565(1) bars all claims against licensed server(s) of alcohol that are brought by a patron who voluntarily consumes the alcohol served.
Area(s) of Law:- Criminal Procedure
State of Oregon v. Marvin Opitz
For a conviction of kidnapping the first degree, the defendant must move the victim to a "qualitatively different" location.
Area(s) of Law:- Criminal Law
State v. Cossette
Under State v. Baty, an argument is not preserved for appellate review if the argument substantially differs from the argument advanced at the trial court.
Area(s) of Law:- Appellate Procedure
State v. Danby
DUII convictions under "former" ORS 487.540 can serve as predicate convictions for satisfying ORS 809.235.
Area(s) of Law:- Criminal Law
State v. M.L.R.
Failure to advise an allegedly mentally ill person of their rights under ORS 426.100(1) regarding a commitment hearing constitutes plain error requiring reversal.
Area(s) of Law:- Civil Commitment
State v. Mccallum
Post-prison supervision, when added to the prison term, may not exceed the statutory maximum indeterminate sentence for the crime of defendant's conviction.
Area(s) of Law:- Sentencing
State v. Oneill
Under ORS 161.200, a defendant’s perception of a threat must be reasonable as gauged by an objective reasonable person standard, rather than a subjective, defendant-specific standard.
Area(s) of Law:- Criminal Law
Stewart and Stewart
A parent's incarceration does not require that visitation rights be denied. Each case must be decided on the merits, not on a general policy disallowing children to visit parents while incarcerated.
Area(s) of Law:- Family Law
Bell v. Tri-Met
The two year statute of limitations on a tort action against a public body contained in ORS 30.275(9) supersedes the three year limitation on a survival action for personal injuries by a personal representative contained in ORS 30.075(1).
Area(s) of Law:- Civil Procedure
Estacada Rural Fire Dist. #69 v. Hull
When a physical disorder is caused by a stress-related mental disorder, the firefighters’ presumption does not apply. Stress-related physical disorders are not compensable under workers compensation claims unless heightened standards are met.
Area(s) of Law:- Employment Law
McMurchie and McMurchie
When determining a parent's presumed income, for the purposes of determining a child support obligation, a court may consider the parent's actual income or potential income, but not both.
Area(s) of Law:- Family Law
State v. Ashbaugh
For the purposes of ORS 162.155, an escapee enters into the constructive custody of authorities upon verbal notice of a warrant for his arrest and the intent of authorities to place him under arrest.
Area(s) of Law:- Criminal Law
State v. Milnes
In order to issue the witness-false-in-part jury instruction a witness must clearly have consciously testified falsely.
Area(s) of Law:- Criminal Procedure
State v. Ross
For a passenger to be seized during a traffic stop, the officer must use physical force or a show of authority directed at the defendant, specifically.
Area(s) of Law:- Criminal Procedure
Walker v. State
The requirements of preservation do not apply when a party has no practical opportunity to object to the purported error before entry of judgment. Plain error is therefore inapposite.
Area(s) of Law:- Post-Conviction Relief
Rivas v. Persson
Credit for time served has no bearing on when an inmate will be released after the release date has passed. Instead, the ultimate release date is determined exclusively through the parole consideration process.
Area(s) of Law:- Post-Conviction Relief
Rivers v. SAIF
The wage earning agreement between a worker and his or her employer may be a general agreement reflecting the payment aspect of the parties employment relationship, even if that agreement contemplates that the employee will be assigned to various jobs that will involve differing pay rates and hours.
Area(s) of Law:- Workers Compensation
State v. Brown
Diagnosis of a victim as sexually abused or “highly concerning for sexual abuse” requires physical evidence to support it in order to be admitted into evidence since such a diagnosis has more than a little likelihood to affect a jury’s verdict.
Area(s) of Law:- Evidence
State v. Coronado
The Court follows a two-step process in deciding to review alleged plain error. First, if the error is unpreserved, it must be one of law, apparent or not reasonably in dispute, and appear on the face of the record. Second, the Court considers factors to decide if the error should be reviewed.
Area(s) of Law:- Appellate Procedure
State v. Cruz-Gonzalez
Driving away after damaging property, even for two minutes, completes the crime of failure to perform the duties of a driver when property is damaged, and a jury instruction on attempt is not warranted.
Area(s) of Law:- Criminal Law
State v. Kingsmith
Incriminating evidence obtained against a particular defendant during a traffic stop should be suppressed if the officer's reasonable suspicion of criminal activity was not based on actions or characteristics of that defendant.
Area(s) of Law:- Criminal Procedure
State v. Kingsmith
Evidence incriminating a defendant and obtained during a traffic stop should be suppressed if the officer's reasonable suspicion of criminal activity was not based on actions or characteristics of the defendant.
Area(s) of Law:- Criminal Law
State v. Meza-Garcia
When an officer asks for consent to search following an illegal stop, evidence resulting from the search can be found admissible if the consent is "sufficiently attenuated" from the initial illegal stop.
Area(s) of Law:- Criminal Procedure
State v. Stubbs
Under ORCP 59 E, a jury is allowed to consider all evidence present on the record and a trial court is not allowed to instruct the jury as to matters of fact or comment on the evidence.
Area(s) of Law:- Evidence
Two Two v. Fujitec
An affidavit outlining elements on which an expert will testify that lacks indication that the expert will testify as to causation, absent other supporting evidence, is not sufficient to establish an issue of material fact.
Area(s) of Law:- Tort Law
State of Oregon v. Jeffery Dean Beagley
A parent has an absolute duty to provide medical care to a child, and that once a reasonable person should know that there is a substantial risk that a child will die without medical care, the parent must provide that care, or allow it to be provided.
Area(s) of Law:- Criminal Law
June 22 summaries
Afzal v. PERB
Under ORS 238.320(1), to establish eligibility for a disability retirement allowance, a claimant must be mentally or physically incapacitated for an extended duration and thereby unable to perform any work for which qualified.
Area(s) of Law:- Disability Law
SAIF Corporation v. Matt Jenkins Contracting
When a temporary service provider leases a worker to an employer, the temporary service provider becomes a worker leasing company responsible for providing workers' compensation coverage under ORS 656.850.
Area(s) of Law:- Workers Compensation
State v. Edblom
When admitting certain hearsay statements under under OEC 803(18a)(b), notice must be served that identifies the substance of the statement sought to be introduced and also identify the witness or the means by which the statement will be introduced.
Area(s) of Law:- Evidence
State v. Lovaina-Burmudez
The retention and processing of clothing as evidence exceeds the scope of a lawful inventory and therefore is an unlawful search and seizure. For the State to use such evidence, it must be demonstrated that the evidence would inevitably be lawfully discovered.
Area(s) of Law:- Criminal Procedure
Erskine v. Psychiatric Security Review Board
Under ORS 161.341, an application for conditional release must be accompanied by a verified conditional release plan.
Area(s) of Law:- Post-Conviction Relief
Mendoza v. Liberty Northwest Insurance Corporation
An employee who is injured while performing a duty of employment, even a duty not required and off-premises, is in the course of employment if it benefits and is permitted by the employer.
Area(s) of Law:- Workers Compensation
State v. Dierks
An individual is subject to a stop requiring reasonable suspicion when an officer asks questions about criminal activity, acquires information about the individual’s identity, and returns to his patrol car with that information.
Area(s) of Law:- Criminal Procedure
Trimet v. Wilkinson
An employer's denial of a Worker's Compensation claim involving a combined condition must be preceded by written notice of acceptance of the combined condition to the employee.
Area(s) of Law:- Workers Compensation
Baker v. Liberty Northwest Ins. Co.
New occupational disease claims, brought under ORS 656.802(2)(a), must be brought within one year of discovery of injury, due to ORS 656.807.
Area(s) of Law:- Workers Compensation
Cayton v. Safelite Glass Corp.
Success in obtaining penalty-based attorney fees under ORS 656.262(11) for delay in payment of compensation does not mandate an award of compensation-based attorney fees under ORS 656.382(1).
Area(s) of Law:- Workers Compensation
Dixon v. Board of Parole and Post-Prison Supervision
On substantial evidence review of a final order of the Board of Parole and Post-Prison Supervision the Court must determine whether a reasonable person could make the findings the board made. The Board's final decision must be supported by substantial reasoning.
Area(s) of Law:- Parole and Post-Prison Supervision
Friends of Columbia Gorge v. Columbia River
Under ORS 196.115(3)(d), the Court shall remand the commission's acceptance of a proposal if it is inconsistent with an agency rule, or an officially stated position or practice, unless the inconsistency is explained, or if the commission's decision is in violation of a statutory provision.
Area(s) of Law:- Administrative Law
Kalfas v. Adams
When an express easement is clear and unambiguous, the court should not look to the surrounding circumstances to determine its meaning.
Area(s) of Law:- Property Law
Pearson v. Phillip Morris, Inc.
When individuals and other putative class members suffer ascertainable losses and those losses can be litigated based on evidence common throughout the class, class certification may be appropriate.
Area(s) of Law:- Civil Procedure
State v. Beagley
A parent has an absolute duty to provide medical care to their child, and once a reasonable person would know that there is a substantial risk that a child will die without medical care, the parent must provide medical care, or allow medical care to be administered.
Area(s) of Law:- Criminal Law
State v. Magana
All evidence that is derived from a stop, without mitigating circumstances, must be purged from the illegal stop, unless there is reasonable suspicion of criminal activity before the stop is made. Additionally, all evidence derived from an involuntary search must be suppressed if there are no intervening or mitigating circumstances present.
Area(s) of Law:- Criminal Procedure
ZRZ Realty v. Beneficial Fire and Casualty Ins.
Under ORS 20.220(3)(a) if supplemental judgment is predicated on the underlying attorney fee award in the general judgment, the effect of reversing the general judgment is the reversal of the supplemental judgment as well.
Area(s) of Law:- Attorney Fees
Baldwin and Baldwin
Under ORS 18.235, the trial court administrator is only required to enter satisfaction of a child-support judgment into the record if the judgment is paid in full.
Area(s) of Law:- Family Law
ODOT v. Singh
Under the requirements in ORS 35.346, just compensation for damages resulting from a condemnation action need to be calculated based on specified terms promised in the agreement.
Area(s) of Law:- Property Law
State v. Kinslow
Under ORS 163.225(1)(a), movement of an individual from one room to another within the same house does not meet the asportation element.
Area(s) of Law:- Criminal Law
State v. Teitsworth
Evidence of uncharged misconduct that is introduced to show hostile motive toward the victim and is also probative of intent must pertain to a disputed issue and meet the Johns test.
Area(s) of Law:- Evidence
State v. Thompson
Under Article I, section 42 of the Oregon Constitution, a victim who has been economically harmed has a right to restitution even after Defendant is sentenced.
Area(s) of Law:- Criminal Procedure
July 34 summaries
Dept. of Human Services v. M.K.
Under ORS 419B.476, "reasonable efforts" to allow a ward to be returned home must be determined by a totality of the circumstances analysis and not a single factor such as cost.
Area(s) of Law:- Juvenile Law
Shelter Products v. Steelwood Construction
When a contract is terminated "for convenience" and not "for cause," a general contractor cannot deduct their damages from the amount awarded for work completed by a subcontractor.
Area(s) of Law:- Contract Law
State v. Avila-Nava
Follow-up and clarifying questions after giving Miranda warnings are permissible only when the invocation of the right to remain silent is equivocal. Error allowing prosecution to impeach witness is not harmless error when the defendant's credibility is vital to the defense.
Area(s) of Law:- Criminal Procedure
State v. May
In assessing sufficiency of evidence, a trier of fact may draw a conclusion when there is a reasonable probability that the conclusion flows from the proven facts.
Area(s) of Law:- Evidence
Aponte v. State
If factual findings of a post-conviction court’s ruling remain unchallenged and Defendant is unable to prove, by a preponderance of the evidence, that defense counsel provided ineffective legal assistance, post-conviction relief will be denied.
Area(s) of Law:- Post-Conviction Relief
Bianco v. DMV Services Division
Absent any evidence that an administrative agency intended to part with the legislature's definition of specific terms, the Court will align its decision with the traditional reading of the specific terms.
Area(s) of Law:- Administrative Law
Bianco v. DMV Services Division
Absent any evidence that an administrative agency intended to part with the legislature's definition of specific terms, the court will align its decision with the traditional reading of the specific terms.
Area(s) of Law:- Administrative Law
Couey v. Brown
The Court may find that a dispute is moot when the facts upon which the dispute rests are more contingent and hypothetical than imminent and certain.
Area(s) of Law:- Civil Procedure
Dept. of Human Services v. R.D.
To change a plan from reunification to adoption at a permanency hearing, DHS has the burden of proving that (1) DHS made reasonable efforts to make it possible for the child to return home safely, and (2) that the parent had not made sufficient progress for that to occur.
Area(s) of Law:- Juvenile Law
Lehman v. Bielenberg
Failure to file responsive pleadings does not entitle the opposing party to a default judgment unless the opposing party complies with the requirements of ORCP 69.
Area(s) of Law:- Civil Procedure
Lotches v. Premo
The Oregon Constitution does not grant a right to a perfect defense in criminal cases. It requires only that counsel act to diligently and conscientiously advance the defense.
Area(s) of Law:- Post-Conviction Relief
State v. Fredinburg
When a party does not show sufficient cause to support a motion to postpone trial and a motion for self-representation would have been disruptive to the orderly conduct of the trial, those motions will be denied.
Area(s) of Law:- Criminal Procedure
State v. Gruhlke
An information, like an indictment, must contain facts that sufficiently allege the charged offense is timely.
Area(s) of Law:- Criminal Procedure
State v. Sewell
Evidence may be admitted at trial if its probative value is not substantially outweighed by the potential of unfair prejudice towards the Defendant.
Area(s) of Law:- Evidence
Waid and Waid
Under ORS 107.135(4), a court must consider whether change in circumstances justifies reconsidering a spousal support award.
Area(s) of Law:- Family Law
Kemp v. MasterBrand Cabinets, Inc
(1) A common law wrongful discharge claim should not be dismissed for adequacy of other statutory remedies if the common law claim preexisted any statutory remedy; (2) attorneys fees are not improper if they are connected to a claim of unlawful discrimination; and (3) if an evidentiary matter was improperly decided, but was not central to the case, it is a harmless error.
Area(s) of Law:- Employment Law
OR-OSHA v. Moore Excavation, Inc.
OR-OSHA has the burden of proving, in its prima facie case when a hazardous condition is presumed to exist, that employee exposure to the hazardous condition is "reasonably predictable."
Area(s) of Law:- Administrative Law
Park v. Dept. of Corrections
It is impermissible to award attorney fees simply because a witness is disbelieved or because their credibility is challenged.
Area(s) of Law:- Attorney Fees
Rucker v. Rucker
A substituted contract must show the intent of the parties to substitute the new promise for the original liability. Recording the agreement in court and signing a memorialization is sufficient to show such intent.
Area(s) of Law:- Contract Law
State v. Finlay
(1) Under State v. Meharry, Defendant is not required to be driving the vehicle in order for the police to "encounter" the vehicle during a warrantless search. (2) An attached trailer qualifies as a "vehicle" for the purposes of the automobile exception to the warrant requirement. (3) Under Meharry, the automobile exception to the warrant requirement permits a warrantless search of a vehicle when the police have probable cause or the vehicle is mobile at the time of the encounter.
Area(s) of Law:- Criminal Procedure
State v. Lubbers
A waiver of the right to counsel is valid when the totality of circumstances indicates that the defendant is aware of his or her right to counsel, the benefits of having counsel, and the disadvantages of self-representation.
Area(s) of Law:- Criminal Procedure
Dept. of Human Services v. N.P.
When reviewing a juvenile court's decision under ORS 419B.100(1)(c), the court: (1) assumes the juvenile court's findings of historical fact are correct if there is any evidence in the record to support them; (2) assumes that, if the juvenile court is silent on an issue of material fact, the issue is resolved in a manner consistent with the juvenile court's decision; (3) combines (1) and (2) along with non-speculative inferences to determine if ORS 419B.100(1)(c) was satisfied.
Area(s) of Law:- Juvenile Law
PacifiCorp v. SimplexGrinnel
Transposition of parties in the Court's hypotheticals pertaining to a contractual indemnification clause were immaterial.
Area(s) of Law:- Contract Law
State v. Alvarado
Under ORS 166.450, the phrase "presumptive evidence" is not that same as a rebuttable presumption, and does not shift the burden of proof to the Defendant. Additionally, reasonable suspicion is determined at the time the traffic stop is improperly extended, and does not include factors that arise after the unlawful extension.
Area(s) of Law:- Criminal Law
State v. Brand
Under OAR 213-012-0040(2), the court is required to impose concurrent sanctions when the Defendant has committed a single probation violation.
Area(s) of Law:- Sentencing
State v. Cupp
A delay of 11 months for a trial for DUII, when only 34 days of that time are unaccounted for, does not amount to an unreasonable delay and, consequently, a denial of a speedy trial.
Area(s) of Law:- Criminal Procedure
State v. Lewis
Per OAR 213-012-0040(2), when a defendant is serving multiple terms of probationary supervision and commits one probation violation, the court can revoke and impose only concurrent sentences and not consecutive sentences.
Area(s) of Law:- Sentencing
State v. Wagoner
ORS 136.106 does not prevent a court from imposing restitution more than 90 days after sentencing.
Area(s) of Law:- Sentencing
State v. Whitmore
Expert testimony of a scientific nature is so inherently persuasive that not only must an expert's credentials be testified to a jury, but a foundation must be built showing their methodology is scientifically valid.
Area(s) of Law:- Evidence
Multnomah County Corrections v. Multnomah County
Requirement of a minimum of 40 hours training for strike-prohibited corrections employees cannot be reasonably understood to relate to a matter of on-the-job employee safety under ORS 243.650.
Area(s) of Law:- Employment Law
State v. Briggs
Consent to entry occurs where the officer presents an alternative to allowing the officer enter.
Area(s) of Law:- Criminal Procedure
State v. Klontz
Evidential error is not presumed to be prejudicial; a decision can be upheld if the court makes it clear that it did not rely on the disputed evidence in making its decision.
Area(s) of Law:- Evidence
T. S. R. v. J. B. C.
Oregon's statutory policies consider a child's best interests with great weight when trying to promote relationships between a child and a noncustodial parent.
Area(s) of Law:- Family Law
Woodroffe v. Nooth
Past deliberate indifference is insufficient to support habeas relief.
Area(s) of Law:- Habeas Corpus
August 39 summaries
Greene v. Homesales, Inc.
The doctrine of “law of the case” precludes re-litigation of issues that have been decided at earlier stages of the same case.
Area(s) of Law:- Civil Procedure
Spain v. Jones
The Yowell doctrine precludes a grant of summary judgment on common law negligence claims, and premises-liability claims when a genuine issue of material fact exists.
Area(s) of Law:- Civil Procedure
State v. Hunter
If an act of an alleged crime occurred within the limitations period then the indictment for the alleged crime is facially sufficient.
Area(s) of Law:- Criminal Law
State v. Roquez
Under OEC 404(3), "other crimes" evidence cannot be used when the prior crime is insufficiently similar to the acts involved in the charged offenses, or when attempting to use one victim's state of mind to prove another's.
Area(s) of Law:- Evidence
State v. Thomas
Under OEC 609, record of a previous judgment is considered public record for purposes of impeachment against an adverse witness when it can be established that the judgment is part of an actual public record.
Area(s) of Law:- Evidence
State v. Wells
A court may exercise its discretion to review for plain error to apply the law as it exists at the time an appeal is decided.
Area(s) of Law:- Appellate Procedure
Vigor Industrial, LLC v. Ayres
A "combined condition" is compensable only if the otherwise compensable injury is the major contributing cause of the combined condition disability or the major contributing cause of the need for treatment of the combined condition as compared to the contributions from the preexisting conditions.
Area(s) of Law:- Workers Compensation
Chelius v. Employment Dept.
For unemployment insurance tax purposes, administrative rule OAR 471-031-0181 provides that, whether an individual maintains control over the ‘means and manner’ of performance determines whether that individual is either an employee or an independent contractor
Area(s) of Law:- Employment Law
Dam v. Board of Parole and Post-Prison Supervision
Erred psychological report leading to denial of parole requires new psychological evaluation pursuant to ORS 144.226 and ORS 144.228.
Area(s) of Law:- Criminal Procedure
Dept. of Human Services v. C. F .
The court will look to the totality of the circumstances to determine if the record is legally sufficient to permit a court's ruling that there was a current threat of serious injury to the children.
Area(s) of Law:- Juvenile Law
Dept. of Human Services v. C. J. T.
Juvenile jurisdiction over a child may be established when the court has sufficient evidence linking past conditions or circumstances endangering the welfare of the child to a current threat of harm to the child.
Area(s) of Law:- Juvenile Law
Dept. of Human Services v. D.A.N.
Parent who fails to meet obligations under an action agreement due to brevity of incarceration allows a court to conclude that parent has not made sufficient progress under ORS 419B.476(2) when reunification would not occur for a minimum of nine months.
Area(s) of Law:- Juvenile Law
Dept. of Human Services v. D.W.C.
To change a permanency plan from reunification to guardianship, the parent must fail to make sufficient progress in his or her relationship with the child to remove the jurisdictional basis.
Area(s) of Law:- Juvenile Law
Dept. of Human Services v. J. G.
Statements that the court relied on to establish jurisdiction were admissible under OEC 803(4) as statements for the purpose of medical diagnosis or treatment.
Area(s) of Law:- Evidence
Dept. of Human Services v. J.L.H.
Under the Indian Child Welfare Act the State must prove beyond a reasonable doubt the factual basis for terminating parental rights. Additionally, under ORS 419.504, the State must demonstrate the parent's conduct and environmental conditions are seriously detrimental to the child, and will not be resolved within a reasonable period of time.
Area(s) of Law:- Juvenile Law
Dept. of Human Services v. M. H.
Under ORS 419.476(5)(d) and ORS 419B.498(2), compelling reasons must be stated to terminate parental rights before a permanency judgment can be entered.
Area(s) of Law:- Juvenile Law
State v. A.D.S.
A mental commitment order cannot be based on speculation that a person cannot care for their own personal needs, and that a person's needs can be met through their own resources or through the help of another.
Area(s) of Law:- Civil Commitment
State v. Bailey
Discovery of an outstanding warrant for a defendant's arrest purges the taint of prior unlawful police conduct that might otherwise require suppression of evidence obtained as a result of an arrest on the warrant.
Area(s) of Law:- Criminal Procedure
State v. Faubion
An officer is permitted to verify the accuracy of information obtained during a stop, even when there is a lawful explanation of the behavior.
Area(s) of Law:- Criminal Procedure
State v. Higgins
Failure by the trial court to sua sponte prevent the victim's mother in a sexual penetration, sodomy and rape case to comment on the victim's credibility constitutes plain error and requires reversal.
Area(s) of Law:- Evidence
State v. Huffman
Reasonable suspicion must be evaluated based on the information that is available to the officer under the circumstances in which the decision must be made. Reasonable suspicion does not require that the facts as observed by the officer conclusively indicate illegal activity, only that those facts support the reasonable inference of illegal activity by that person.
Area(s) of Law:- Criminal Law
State v. Jones
Improper admission of prior bad acts evidence is subject to review under the "plain error" standard.
Area(s) of Law:- Appellate Procedure
State v. Stradley
More than one person can be found guilty of “frequenting” in violation of ORS 167.222(1) when there are joint owners or occupiers in a home as long as they knowingly possess the controlled substance. Having another person jointly occupying the home without reasonably knowing of the controlled substance is not enough evidence to convict the Defendant of “frequenting” within the meaning of the statute.
Area(s) of Law:- Criminal Law
State v. Williams
Under OEC 404(3), in sexual abuse cases a defendant's history of sexual wrongs, crimes, or acts is inadmissible character evidence unless the evidence is logically relevant to the defendant's specific intent of the alleged wrongdoing.
Area(s) of Law:- Evidence
Stiles v. Godsey
A ruling or decision that has been made in a particular case is binding on a second appeal. It can only be reviewed as a matter of law if the judgment conflicts or was contrary to the ruling or decision.
Area(s) of Law:- Property Law
White v. Vogt
A court does not have writ of review jurisdiction over decisions that are purely ministerial in nature.
Area(s) of Law:- Civil Procedure
Berg v. Nooth
An attorney’s failure to object to vouching testimony by expert witnesses results in prejudice to the defendant, and entitles the defendant to a new trial.
Area(s) of Law:- Post-Conviction Relief
Quick Collect, Inc. v. Higgins
Under ORAP 5.45(1), a party claiming error must present the claim of error to the trial court before the Court of Appeals will consider it on appeal.
Area(s) of Law:- Appellate Procedure
SAIF Corp. v. Sparks
Subsistence and travel pay that are combined with an employee's wages and are paid in addition to regular hourly wages in a singular paycheck will not be treated as reimbursements and will be due as a part of the worker's disability benefits.
Area(s) of Law:- Workers Compensation
Sparling v. Providence Health System Oregon
An injured worker's "attending physician" is not the only medical provider who can provide medical services to the injured worker. However, only the "attending physician" may authorize the payment of temporary total disability compensation to the injured worker.
Area(s) of Law:- Workers Compensation
Sparling v. Providence Health Systems
An injured worker's "attending physician" is not the only medical provider who can provide medical services to the injured worker. However, only the "attending physician" may authorize the payment of temporary total disability compensation to the injured worker.
Area(s) of Law:- Workers Compensation
SPS Of Oregon, Inc. v. GDH, LLC
(1) Elements under wrongful initiation of a civil proceeding are not identical to those necessary for proving enhanced prevailing party fees under ORS 20.190, thus issue preclusion does not apply; (2) a party's reliance upon his or her attorney's advice, and the reasonableness of such reliance after a full and frank disclosure of pertinent facts, are all issues of fact to be determined by a jury; and (3) an attorney's malice requires a purpose other than recovery of damages, which is a question of law.
Area(s) of Law:- Evidence
State v. Gonzalez-Valenzuela
Under ORS 163.575(1)(b), when a person in possession of controlled substances knowingly permits minors to remain in a place where unlawful activity involving controlled substances is maintained that person may be convicted of endangering the welfare of a minor.
Area(s) of Law:- Criminal Law
State v. Riley
In order for hearsay statements to be admitted under OEC 803(18a)(b), a notice of intent must adequately identify the substance of the evidence introduced and the witness or the method by which the statements will be introduced.
Area(s) of Law:- Evidence
Atkeson v. T & K Lands, LLC
It is not inequitable to impute an attorney’s knowledge to the client where the attorney is hired to perform due diligence in a real estate transaction.
Area(s) of Law:- Property Law
Bridgeview Vineyards, Inc. v. State Land Board
If parties dispute material facts essential to an agency's order, the circuit court must allow a petitioner to supplement the administrative record through an evidentiary hearing.
Area(s) of Law:- Administrative Law
Kennedy v. Wheeler
When there is a twelve-person jury, the same nine or more jurors must agree on every interdependent element of a particular claim against a particular defendant.
Area(s) of Law:- Civil Procedure
State v. Beisser
Under OEC 404(1), a defendant may introduce evidence of victim's character and victim's prior violent acts against defendant when asserting the affirmative defense of self-defense, and when character is an essential element of the charge, claim or defense.
Area(s) of Law:- Evidence
State v. J.N.S
Intent to commit a crime therein does not suffice for a burglary charge under ORS 164.215, if the intent is formed while merely remaining on the premises, when the accused had knowledge that they were not originally authorized to enter onto the premises.
Area(s) of Law:- Juvenile Law
September 21 summaries
Aguilar v. Employment Dept.
To receive unemployment benefits, the "good cause" standard is determined as whether a reasonable person would have considered the circumstances to be sufficiently grave that he or she had no alternative but to resign.
Area(s) of Law:- Employment Law
Bagley v. Mt. Bachelor, Inc.
An individuals right to disaffirm a voidable contract is destroyed upon ratification.
Area(s) of Law:- Contract Law
Jenkins v. Parole and Post-Prison Supervision
ORS 144.335(3) requires a parole board to provide an inmate with some explanation of the rationale for concluding that the inmate's parole date should be postponed.
Area(s) of Law:- Parole and Post-Prison Supervision
Portland Columbia Symphony v. Employment Dept.
Factors indicating that an employer is only in direction and control of a desired result over its workers, rather than authority to control the way that work is performed by the workers, favors a finding that the workers are independent contractors.
Area(s) of Law:- Employment Law
Cayton v. Safelite Glass Corp.
Penalties are not considered “compensation” under the Worker’s Compensation Law and therefore cannot be used to award attorney fees under ORS 656.382(1).
Area(s) of Law:- Workers Compensation
Daugherty v. SAIF
Under ORS 656.704, the Workers' Compensation Board is vested with exclusive authority to determine the causal relationship between a claimant's injury and medical services.
Area(s) of Law:- Workers Compensation
Epler and Epler
Once a court's child-custody determination has been memorialized in a dissolution judgment, the presumption in ORS 109.119 that the legal parent acts in the best interest of the child would have no effect in any subsequent modifications under ORS 107.135 which requires there to be a substantial change in circumstances before a court can consider whether to modify custody.
Area(s) of Law:- Family Law
State v. Hurtado-Navarrete
Police are not required to re-advise a defendant of his Miranda rights when he has been provided Miranda rights on multiple occasions including two the day before the statements were made.
Area(s) of Law:- Criminal Law
Yi v. City of Portland
Claim preclusion applies where the facts that entitled the plaintiff to relief in the first action are the same in the second action, and are of such a nature that they could have been joined in the first action.
Area(s) of Law:- Workers Compensation
Blue Iguana, Inc. v. Oregon Liquor Control Commission
The “crowd management exemption” under ORS 181.871(2), which permits limited use of unlicensed security personnel at events involving liquor, applies only to “organized events,” and the discretion to define the terms of that statute rests with the Oregon Liquor Control Commission.
Area(s) of Law:- Administrative Law
Salgado and Salgado
When a trial court in a dissolution case relies on a particular valuation methodology, there must be some evidence in the record that sets forth that methodology.
Area(s) of Law:- Family Law
State v. Gruver
Leaving the supervision of an unarmed civilian not on the premises of a correctional facility is not escape in the second or third degree and instead constitutes unauthorized departure under ORS 162.175.
Area(s) of Law:- Criminal Law
Andersen and Andersen
A spouse seeking support bears the burden of showing that the earning capacity of the other spouse exceeds their actual income and can only be sustained by non-speculative evidence based on present earning capacity.
Area(s) of Law:- Family Law
Cascade Physical Therapy v. Hartford Casualty Ins.
OAR 436-009-0040(1) sets a maximum for fees paid for medical services of injured workers, and is not intended to prevent parties from agreeing on a lower rate than would normally be paid under the fee schedule.
Area(s) of Law:- Insurance Law
Dept. of Human Services v. A.R.S.
Under ORS 419B.100(1)(c), a juvenile court has jurisdiction of a child whose condition or circumstances, under the totality of the circumstances, are such that there is a reasonable likelihood that the welfare of the child is endangered.
Area(s) of Law:- Juvenile Law
Grimm v. Board of Parole and Post-Prison Supervision
When an inmate, whose dangerousness is based on a disability, is found to be a danger to the community, 42 USC §§ 12101-12213, the Americans with Disabilities Act and ORS 659A.142 will not limit the Board of Parole and Post-Prison Supervision's ability to defer the inmates release.
Area(s) of Law:- Parole and Post-Prison Supervision
Hale v. Belleque
Relief cannot be granted for a claim that is not alleged in the petition and not litigated by the post-conviction court. Petitioner does not need to show evidence of prejudice if the trial court fails to give a proper concurrence instruction.
Area(s) of Law:- Post-Conviction Relief
Rains v. Stayton Builders Mart, Inc.
ORCP 71 B(2) does not override ORCP 71 B(1)(C)'s requirement that in order to set aside a party's judgment a motion shall be made within one year after receiving notice of the judgment.
Area(s) of Law:- Civil Procedure
Riemer v. PERB
Before qualifying for PERS retirement, an individual must first be considered an "employee".
Area(s) of Law:- Administrative Law
State v. Fessenden
A police officer, who has an objectively reasonable belief that an animal has suffered, or will imminently suffer a serious physical injury or death, is justified in conducting a search or seizure without a warrant to provide immediate aid or assistance.
Area(s) of Law:- Criminal Procedure
State v. Holiday
A search occurs when officers interfere with a person’s protected privacy interest. To argue “inevitable discovery,” police must prove that they would have obtained disputed evidence through lawful procedures.
Area(s) of Law:- Criminal Procedure
October 46 summaries
Clayton v. DAS
Under ORS 195.318(3)(b), challenges must be preserved in order to be reviewed.
Area(s) of Law:- Administrative Law
Perez v. Persson
ORS 137.123(1) provides that a sentence imposed by the court may be made concurrent or consecutive to any other sentence, subject to various specific limitations. There is nothing in the language of that statute that limits the court in the exercise of its discretion from imposing partially consecutive sentences and concurrent sentences.
Area(s) of Law:- Criminal Procedure
State v. Currin
A plain, white envelope does not intrinsically suggest that it contains contraband, and therefore the plain-view doctrine requirement that in item's incriminating character be immediately apparent is not met.
Area(s) of Law:- Criminal Procedure
State v. Farmer
The reliability of a drug-detection dog must be determined on a case-by-case basis, considering the dog's training, testing and the certification of the dog's handlers.
Area(s) of Law:- Criminal Procedure
Alcutt v. Adams Family Food Services, Inc.
The exclusive remedy provision of the Workers' Compensation Law is unconstitutional as applied to a worker left with no process through which to seek redress for an injury for which a cause of action exists at common law.
Area(s) of Law:- Workers Compensation
Garrett Hemann Robertson, P.C. v. Winn
Arbitration exception orders are not appealable under any provision of law
Area(s) of Law:- Contract Law
Gilmore and Ambrose
When calculating child support obligations the court must follow the steps of the child support guidelines formula.
Area(s) of Law:- Family Law
Minihan v. Stiglich
An intentional trespass action may properly result in compensatory and punitive damages for both loss of use and emotional distress even if emotional distress is not specifically alleged.
Area(s) of Law:- Property Law
O'Neil v. Martin
Personal jurisdiction is established if a person purposefully directs his activities at a given state, the action “arises out of” the activities directed at the state, and the person can reasonably foresee being haled into the courts of that state. Under ORCP 23 A, a plaintiff has an opportunity to amend his complaint once before the trial court can dismiss it with prejudice.
Area(s) of Law:- Civil Procedure
State v. Beltran
A motion for consolidation is untimely when the motion is not filed until the same day of the trial, and the defendant is not given the opportunity to make a calculated response.
Area(s) of Law:- Criminal Procedure
State v. C.C.
Insistence on fulfilling a delusional plan and refusing to take life saving medication is sufficient under ORS 426.005(1)(e)(A) for a court to order involuntary commitment for up to 180 days.
Area(s) of Law:- Civil Commitment
State v. Coughlin
A charge of contempt of court is considered neither a conviction nor an offense for purposes setting aside a past conviction under ORS 137.225(1).
Area(s) of Law:- Post-Conviction Relief
State v. Evilsizer
In review of a judgment of acquittal, when the court is asked to determine whether evidence was presented to the jury from which the jury could find the defendant guilty, the Court must read the jury instructions as the jury might reasonably have understood them.
Area(s) of Law:- Appellate Procedure
State v. Goff
Under OEC 404(3), evidence of prior misconduct is inadmissible to show intent if defendant has not admitted the act in question.
Area(s) of Law:- Evidence
State v. Hutton
Evidence of prior bad acts can only be used to prove intent under OEC 404(3) where the defendant admits committing the actus reus or the judge instructs the jury that it must first find the defendant committed the actus reus before using prior bad acts to determine intent
Area(s) of Law:- Evidence
State v. Sagdal
Under Article I, section 11 and Article VII (Amended), section 9 of the Oregon Constitution, it is proper for the trial court to empanel a six-person jury for a defendant’s misdemeanor case, and that jury’s verdict is valid.
Area(s) of Law:- Criminal Procedure
State v. Taylor
A defendant released pursuant to a security release may be convicted for second degree failure to appear without evidence of a sworn writing.
Area(s) of Law:- Criminal Procedure
State v. Wallace
A defendant represented by court appointed counsel shall not be ordered to pay attorney fees unless it can be determined that the defendant may be able to pay them.
Area(s) of Law:- Attorney Fees
State v. Wynne
A motion to suppress evidence on the grounds of unlawful seizure must establish a causal connection between the unlawful seizure and the discovery of challenged evidence.
Area(s) of Law:- Criminal Law
Love v. Prime, Inc.
Plaintiff need not exhaust all administrative remedies when a party is not challenging an agency process or its outcome, nor does the primary jurisdiction doctrine apply when there is no basis for resolution of an administrative issue under the administrative construct, intended only to be applicable to an different stage of contest.
Area(s) of Law:- Administrative Law
Smith v. TRCI
A correctional facility's housing unit guidelines which are not "mere applications" of existing rules, are rules subject to APA rulemaking procedures.
Area(s) of Law:- Administrative Law
State v. Cadger
A defendant cannot be convicted of escape from a correctional facility under ORS 162.155 when he or she is authorized to depart from the jail and is not under the supervision of a law enforcement official when he or she absconds from a work site.
Area(s) of Law:- Criminal Law
State v. Roelle
Under OEC 404(3), evidence of a prior criminal conviction used to prove the intent element of a crime, when the defendant denies the act took place, requires a jury instruction limiting them to first find the defendant committed the act before considering the prior conviction for intent.
Area(s) of Law:- Evidence
State v. Smith
To prove that a defendant "hindered" a report under ORS 165.572, the state must establish that the defendant's actions made it slow or difficult for another person to make a report. That requires proof of some discernible interruption or delay in the making of a report above the de minimis level.
Area(s) of Law:- Criminal Procedure
DeArmitt v. Dept. of Corrections
The limited scope of review under ORS 183.400 does not allow the Court to review such rule challenges to determine whether the rules find adequate evidentiary support in the rulemaking record therefore both of the Oregon Department of Corrections rules, OAR 291-131-0035(1)(a)(D) and OAR 291-131-0025(11)(b)(D), are held valid.
Area(s) of Law:- First Amendment
Dept. of Human Services v. L.A.S.
Under ORS 419B.476, there is no requirement that the juvenile court consider whether a child can be safely returned to the parent within a reasonable time, before changing a permanency plan from reunification to adoption.
Area(s) of Law:- Juvenile Law
Dept. of Human Services v. S.D.I.
For ORS 419B.100(c) to apply, the State must show sufficient evidence of the type, degree and duration of any psychological or emotional damage that would justify juvenile court jurisdiction over the child.
Area(s) of Law:- Juvenile Law
LaVoie v. Power Auto, Inc.
To survive a Motion for Summary Judgment, a responding attorney's affidavit that uses future expert testimony to satisfy a prima facie claim must state genuine issues of material fact that address any affirmative defenses raised by the opposition.
Area(s) of Law:- Civil Procedure
State v. Farokhrany
When prosecutors mention rape laws of the Middle East during voir dire in a case where the defendant is a Muslim from the Middle East, the court must grant a curative instruction to ensure the jury does not impermissible consider race and religion during deliberations.
Area(s) of Law:- Criminal Procedure
State v. King
In issuing a warrant, the magistrate could reasonably conclude that the totality of the facts set out in the affidavit, separate from the informant's allegations, sufficiently corroborated the anonymous informant's statements.
Area(s) of Law:- Criminal Procedure
State v. Olive
Under ORS 162.315, it must be shown that an individual intended to resist arrest in order to satisfy the elements of the offense. Additionally, in order to form the required intent the person must know they are being arrested.
Area(s) of Law:- Criminal Law
State v. Patton
Material variance between pleadings and proof does not exist when a rational trier of fact could conclude, based on credible testimony and reasonable inferences, that a defendant committed the alleged crime.
Area(s) of Law:- Criminal Law
State v. Woodall
Offering curative jury instructions in the event that inappropriate information reaches the jury may be enough to ensure a defendant receives a fair trial.
Area(s) of Law:- Criminal Procedure
Hamlin v. Wilderville Cemetery Association
Summary judgment is appropriate if there is no genuine issue of material fact for trial and the moving party is entitled to prevail as a matter of law. There is no genuine issue of material fact if, based on the summary judgment record no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment.
Area(s) of Law:- Civil Procedure
Pierce and Pierce
Common-law rules regarding payments from debtor to creditor apply in the domestic relations context. A debtor, making a payment to a creditor with multiple claims, may designate application of his payment as long as the debtor manifests his intent as to where the particular payment is to be applied at or before the time of payment.
Area(s) of Law:- Family Law
Pollock and Pollock
It is an abuse of discretion for a trial court to disregard the terms of a marital settlement agreement due to allegedly inequitable conduct by one of the parties, where the parties considered and structured the agreement around such conduct. Additionally, a party that sings a marital settlement agreement purporting to resolve all claims between the parties waives its right to continue discovery under ORS 107.105(1)(f).
Area(s) of Law:- Family Law
State v. D.P.
In determining whether or not a circumstance is compelling in the case of a juvenile and thus requiring Miranda warnings, the court will look at the totality of the circumstances.
Area(s) of Law:- Juvenile Law
State v. Flores
Under ORS 161.067, the court must merge two convictions when a defendant's acts constitute the same conduct or criminal episode, violate two or more statutory provisions, and all elements of one offense are necessarily included in the commission of the other offense.
Area(s) of Law:- Criminal Law
State v. Jackson
Where a stalking charge is based purely on communication, the State must prove that the communication was an unequivocal threat.
Area(s) of Law:- Criminal Law
State v. Mercier
Under ORS 135.747, an argument that a certain amount of delay is attributable to the State and is reasonable will fail if more time is attributable to the State and no argument has been made that it is also reasonable delay.
Area(s) of Law:- Criminal Procedure
State v. Steltz
Under ORS 161.067(1), 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.
Area(s) of Law:- Criminal Procedure
State v. Teixeira
For purposes of OAR 213-008-0002(1)(b)(G), a "victim" is a person who is directly, immediately, and exclusively injured by the commission of the crime--not a person injured only by subsequent, additional criminal conduct.
Area(s) of Law:- Sentencing
State v. Tidwell
Upon a showing that consolidation would cause substantial prejudice, the court will sever the multiple counts.
Area(s) of Law:- Criminal Procedure
Stuart and Ely
A spouse may not seek transitional spousal support under ORS 107.105(1)(d)(A) when the spouse will not use the support for educational or job training purposes.
Area(s) of Law:- Family Law
Tough and Tough
When there is a dispute as to the division of benefits, the Court is to look at the construction of the dissolution judgment.
Area(s) of Law:- Family Law
York v. Paakkonen
Under ORS 31.555, the Dougherty Rule does not apply in a party's favor for partial satisfaction when that same party has objected to the use of a segregated verdict form, which allows for distinguishing between the various types of economic and non-economic damages at issue in the case.
Area(s) of Law:- Civil Procedure
November 31 summaries
State v. Peterson
Determining whether a stop has been unlawfully extended is done by a totality of the circumstances analysis.
Area(s) of Law:- Criminal Procedure
Cascade v. Georgia-Pacific
The interpretation of an express easement is a question of law to be decided by the courts. In construing an easement, a court's task is to discern the nature and scope of the easement's purpose and to give effect to that purpose in a practical manner.
Area(s) of Law:- Property Law
Hale v. State
To grant an action for declaratory judgment, the complaint must state a justiciable controversy. A justiciable controversy must include present facts, not an issue based on future events, and must result in specific relief through a binding decree, not a non-binding advisory opinion.
Area(s) of Law:- Civil Procedure
Logan v. State of Oregon
In order to qualify for post-conviction relief based on trial counsel's failure to object to testimony, a defendant must be prejudiced by the attorney's failure to do so.
Area(s) of Law:- Post-Conviction Relief
State ex rel Dewberry v. Kitzhaber
The Governor has broad powers to enter into tribal-state gaming compacts with various Native American tribes residing in Oregon.
Area(s) of Law:- Tribal Law
State v. Anderson
Under Article I, Section 9 of the Oregon Constitution, to have probable cause in a traffic stop, the officer must (1) subjectively believe a violation has occurred, and (2) that belief must be objectively reasonable under the circumstances.
Area(s) of Law:- Criminal Procedure
State v. Burns
A trial decision that alters a defendant’s criminal history determination, but does not alter the sentence received, is justiciable as a defendant’s only avenue for challenging a criminal history determination. Under ORS 131.505(4), a series of crimes may constitute a single criminal objective if separated by only a short period of time.
Area(s) of Law:- Civil Procedure
State v. Dorsey
A Defendant may only be required to pay restitution for pecuniary damages for criminal activity when he or she has been convicted or has admitted to the crime.
Area(s) of Law:- Sentencing
State v. Labar
Under ORS 137.106(1)(a) when a person is convicted of a crime and the victim suffered economic damages as a result of that crime, the court may order the defendant to “pay the victim restitution in a specific amount that equals the full amount of the victim’s economic damages”. Further, market value is the correct measure for determining retail value and restitution.
Area(s) of Law:- Criminal Law
State v. Lasky
Evidence used to prove the required mental state of a particular crime is relevant unless the evidence is otherwise excluded by other State or Federal law.
Area(s) of Law:- Evidence
State v. Parsons
The proper timing for a defendant’s challenge to venue is before trial through a pretrial objection because it (1) protects defendants from potential undue hardship and unfairness of standing trial in a distant venue and (2) precludes defendants from waiting until trial to raise the issue of venue, thus creating a need for a new trial or implicating double jeopardy.
Area(s) of Law:- Criminal Procedure
State v. Pitts
A burglary conviction can be based on disobeying a peace officer's order only if the original order, the unlawful entry, and the intent to refuse to obey that order all take place as part of a single continuous criminal episode.
Area(s) of Law:- Criminal Law
State v. Tuter
A drug treatment program that was mandated by a governmental actor in order to avoid adverse, judicially imposed consequences is sufficiently similar to a DUII diversion program and can preclude the participant from being awarded DUII diversion.
Area(s) of Law:- Sentencing
C.P. v. Bernstein
ORS 20.105 and 36.715 requires an award of attorney fees and the court must award them as authorized under these statutes.
Area(s) of Law:- Attorney Fees
Leloff and Fong
Retroactive child support may not be awarded solely under a petition pursuant to ORS 109.103 where there is no filiation action.
Area(s) of Law:- Family Law
Oregon v. Alarcon
A judgment for conviction notwithstanding an erroneous admission of evidence will be affirmed if there is little likelihood that the admission of the evidence affected the verdict. The court will consider the nature of the erroneously admitted evidence in the context of other evidence on the same issue.
Area(s) of Law:- Criminal Procedure
State v. Gillson
To preserve an argument, the party must explain the objection to the trial court specific enough to ensure that the court can identify an alleged error, consider the error, and correct the error if warranted.
Area(s) of Law:- Appellate Procedure
State v. Lykins
A person who suffers physical and mental harm, is manipulated, and whose short-term and long-term vulnerability to harm is increased meets the definition of a “vulnerable victim” under OAR 213-008-0002(1)(b)(B).
Area(s) of Law:- Sentencing
State v. McClatchey
The State has the burden to show that a warrant obtained after an illegal search is untainted by the original search. Additionally, a person is not required to assert a privacy interest in their cell phone to receive Article I Section 9 protections.
Area(s) of Law:- Criminal Procedure
State v. Meier
A search incident to arrest is valid, when the intervening discovery of an outstanding warrant is sufficient to purge an unlawful seizure, under Article I, §9 of the Oregon constitution.
Area(s) of Law:- Criminal Procedure
State v. Wright
A fact finder may logically infer, beyond a reasonable doubt, that a single transaction was the result of a continued scheme of defraudment based on previous transactions of similar nature.
Area(s) of Law:- Criminal Procedure
Young v. Davis
Under Oregon's anti-SLAPP statutory scheme, as provided under ORS 31.150, a plaintiff need not show "likelihood of success of the merits," but instead, present "substantial evidence to support a prima facie case."
Area(s) of Law:- Civil Law
Brown and Brown
When reviewing spousal support amounts in settlement agreements not incorporated into a stipulated judgment courts should consider whether the agreement is just and equitable not whether it violates public policy.
Area(s) of Law:- Family Law
Dept. of Human Services v. D. J.
ORS 419B.875(2) provides in part that the rights of the parties include, but are not limited to the right to call witnesses, cross-examine witnesses and participate in hearings. A party’s right to participate includes the right to testify on the party’s own behalf.
Area(s) of Law:- Juvenile Law
Dept. of Human Services v. F.J.S.
A history of anger management and substance abuse problems, coupled with failure to attend court-ordered therapy, constituted sufficient evidence to show a parent was unfit and their child could not be integrated into that parent's home within a reasonable time.
Area(s) of Law:- Juvenile Law
Hernandez-Nolt v. Washington County
In a wrongful discharge claim, an employee’s claim cannot be considered untimely where a genuine dispute regarding the date an employee leaves employment exists, because a wrongful discharge claim does not accrue until the employee leaves the employment.
Area(s) of Law:- Civil Procedure
State v. Marino
A second search cannot be based on consent obtained for the first search when a reasonable person would perceive that the first consent search had terminated.
Area(s) of Law:- Criminal Procedure
State v. Parker
To determine whether a sentence would shock the moral sense for purposes of Oregon's proportionality clause: "(1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the defendant."
Area(s) of Law:- Sentencing
State v. Stewart
Upon review of a judgment of acquittal, the court looks at the facts, in a light most favorable to the respondent, to determines if any reasonable trier of facts could find that the essential elements were proved beyond a reasonable doubt.
Area(s) of Law:- Criminal Procedure
State v. Watts
Admission of improper character evidence is not harmless when it relates to a central factual issue at bar.
Area(s) of Law:- Evidence
Wilson v. Dept. of Corrections
OAR 291-131-0035 is not overbroad, does not exceed Department authority, and is therefore valid.
Area(s) of Law:- Administrative Law
December 44 summaries
Hale v. Belleque
If an issue was not raised before the post-conviction court it cannot be considered on appeal. In addition it is sufficient to establish prejudice in the context of post-conviction relief if there is uncertainty regarding what elements were agreed to and use by the jury.
Area(s) of Law:- Post-Conviction Relief
Greenfield v. Multnomah County
Under the farm stand statute, ORS 215.283, outdoor farm-to-plate dinners may be within the scope of the statute and food carts are considered "structures."
Area(s) of Law:- Land Use
Montara Owners Association v. La Noue Development, LLC
A jury instruction based on diminished value must only be given when evidence in the record allows a jury to reach a conclusion as to the diminished value, and an indemnity clause that offends ORS 30.140(1) because it requires a subcontractor to indemnify a contractor for the contractor's own negligence remains enforceable to the extent that it also requires the subcontractor to indemnify the contractor for the subcontractor's negligence.
Area(s) of Law:- Contract Law
Back in Action v. Liberty Northwest Ins. Corp.
Both the temporary, OAR 436-009-0040 (07/07/08), and permanent, OAR 436-009-0040(1), rules permit the enforcement of fee discount contracts because they only set an upper limit on fees for medical services.
Area(s) of Law:- Workers Compensation
Burgdorf v. Weston
If, in a civil dispute, upon viewing the evidence in a light most favorable to the plaintiff a fact finder could reasonably determine evidence provides grounds for enforcing plaintiff's claims, then granting a defendant's motion for summary judgment on those claims is an error by the trial court.
Area(s) of Law:- Civil Procedure
Guirma v. O'Brien
Under ORCP 21 A(9), a motion to dismiss on the ground that it was untimely under the statute of limitations for professional negligence cannot be granted if the jury could find that plaintiff did not know critical facts until less than two years before filing her action.
Area(s) of Law:- Civil Procedure
WaterWatch of Oregon, Inc. v. Water Resources Dept.
Under ORS 537.230(2) the measuring point for determining the portion of a permit that is "undeveloped" for purposes of ORS 537.230(2)c, and the "maximum rate diverted for beneficial use before the extension" for the purposes of ORS 537.230(2)b, is the expiration of the development deadline in the permit or last-issued extension.
Area(s) of Law:- Water Rights
State v. Pipkin
A one time sale of intangible assets is excluded from the definition of "sales" under ORS 314.665(6)(a) and is not included in that definition under the "unless" clause of that statute.
Area(s) of Law:- Tax Law
Cejas Commercial Interiors, Inc., v. Jorge Torres-Lizama
The right-to-control test should be used to define the employment relationship in terms of direction and control or a contractual relationship.
Area(s) of Law:- Employment Law
Cejas Commercial Interiors, Inc. v. Torres-Lizama
The economic-realities test is the appropriate test to determine whether an entity has functional control over a worker, even if formal control is absent.
Area(s) of Law:- Employment Law
Conrady v. Lincoln County
An ordinance in Lincoln County, LCC 1.1375(2)(m), which requires a landowner to obtain a conditional use permit prior to opening a "firearms training facility," is not preempted by ORS 166.170, ORS 166.171, or ORS 166.176.
Area(s) of Law:- Land Use
Dept. of Human Services v. G.L.H.
ORS 419B.476(2)(a) requires that the juvenile court determine whether DHS has made reasonable efforts and whether the parent has made sufficient progress to make it possible for the ward to return safely home.
Area(s) of Law:- Juvenile Law
Dept. of Human Services v. K.L.M.
A voluntarily untreated mental illness that is seriously detrimental to the child, may support a finding of parental unfitness and termination.
Area(s) of Law:- Juvenile Law
Dept. of Human Services v. R.L.F.
For DHS to take jurisdiction of a child under 419B.100(1)(c), it must establish a current risk of serious loss or injury to the child.
Area(s) of Law:- Juvenile Law
Dept. of Human Services v. R. L. F.
ORS 419B.100 provides that jurisdiction over a child is appropriate when there is a current, non-speculative threat to the welfare of the child.
Area(s) of Law:- Juvenile Law
Hettle v. Construction Contractors Board
Under ORS 701.140, “improper work” can be characterized as work not suited to the circumstances under which it was performed. To recover economic damages in negligence, the “economic loss” doctrine requires the existence of a heightened standard of care, such as one arising out of special relationship or statute.
Area(s) of Law:- Contract Law
Jenkins v. Portland Housing Authority
The Oregon Tort Claims Act is applicable when a duty arises from statute or common law, and is independent from the terms of a specific contract.
Area(s) of Law:- Tort Law
State v. Ashcroft
When a trial court properly grants a motion to continue under ORS 135.763(2), after the district attorney receives notice from Defendant requesting a speedy trial under ORS 135.760 to 135.765, the trial court is not required to dismiss the case if time lapsed is greater than 90 days.
Area(s) of Law:- Criminal Law
State v. Dickerson
Under ORS 164.354, the phrase “property of another” includes property in which another has any legal or equitable interest and is not limited to proprietary or possessor ownership.
Area(s) of Law:- Criminal Law
State v. Granberry
The State must initiate proceedings for a probation-violation before the probationary term has expired.
Area(s) of Law:- Criminal Procedure
State v. Guckert
An indictment that alleges specific sexual touching need not be proven wherein the indictment is more specific than the legal standard in ORS 163.427.
Area(s) of Law:- Criminal Law
State v. Harris
Under the due process clause of the Fourteenth Amendment to the United States Constitution, it is an error of law to admit evidence against a defendant when the defendant does not have an opportunity to confront the evidence presented against her.
Area(s) of Law:- Evidence
State v. Langford
When a defendant is sentenced to and agrees to community service, then that defendant is not also subject to a work crew unless specified by the judgment. The standard of review is the same as that of reviewing a judgment of acquittal.
Area(s) of Law:- Criminal Procedure
Brown v. MacDonald and Associates, LLC
Proving a person is financially incapable under ORS 125.400 requires evidence that the risk of exploitation or bad financial management was caused by a person's lack of capacity.
Area(s) of Law:- Trusts and Estates
Cortese and Cortese
A court may award transitional spousal support based on an earning capacity that is greater than actual income when there is sufficient evidence in the record supporting the increase.
Area(s) of Law:- Family Law
Davis v. F.W. Financial Services, Inc.
In the event that a debtor has unresolvable financial problems, a secured party has not waived its priority by allowing the debtor to attempt to cure default.
Area(s) of Law:- Contract Law
Department of Human Services v. J. M.
The Department of Human Services has the burden of showing, by the preponderance of the evidence, that the conditions that were originally found to endanger the child persist to a degree that they currently pose a threat of either serious loss or injury that is reasonably likely to be realized.
Area(s) of Law:- Juvenile Law
Dizick v. Board of Parole and Post-Prison Supervision
The Board of Parole and Post-Prison Supervision does not have authority to correct sentencing errors, so it also cannot decide the presumptive sentence.
Area(s) of Law:- Parole and Post-Prison Supervision
McNeff v. Emmert
As stated in Strawn v. Farmers Ins. Co., a plaintiff needs to show "the defendant made a material misrepresentation that was false; the defendant did so knowing that the representation was false; the defendant intended the plaintiff to rely on the misrepresentation; the plaintiff justifiably relied on the misrepresentation; and the plaintiff was damaged as a result of that reliance,"; not that there was a "meeting of the minds."
Area(s) of Law:- Evidence
SAIF v. Walker
In a Workers' Compensation action, the reviewing Court will not reweigh the evidence or choose sides among members of the board who initially reviewed the claim. A reversal of the board's decision will only occur when the credible evidence apparently weighs overwhelmingly in favor of one finding and the board finds the other without giving a persuasive explanation.
Area(s) of Law:- Workers Compensation
State v. Badillo
The Criminal Law Revision Commission intended ORS 161.485(2) to prevent multiple convictions for attempt, solicitation, and conspiracy on the basis of a defendant's single course of conduct, as opposed to preventing multiple convictions for multiple instances of one or another of the inchoate crimes.
Area(s) of Law:- Criminal Law
State v. Evans
An exception to OEC 504(2), ORS 419B.040(1) allows for the admissibility of therapists testimony, as long as the testimony references only exculpatory or inculpatory information regarding the abuse of the child in the case being decided.
Area(s) of Law:- Evidence
State v. Fitzhugh
A "dependent person" under ORS 163.205(2)(b) is not limited to a person suffering from permanent or enduring disabilities.
Area(s) of Law:- Criminal Law
State v. Groner
An individual suspected of DUII has only the right to a reasonable opportunity to contact an attorney, not the right to have an attorney present; therefore, the presence of an attorney as a condition to submitting to a breath test constitutes a refusal.
Area(s) of Law:- Criminal Procedure
State v. Link
When some of a defendant's convictions are remanded, the trial court must grant defendant a sentencing proceeding.
Area(s) of Law:- Criminal Procedure
State v. Mazzola
Under Article I, section 9, an officer can conduct field sobriety tests (FSTs) if the tests are justified by probable cause and exigent circumstances.
Area(s) of Law:- Criminal Procedure
State v. Moore
Under Article 1 Section 9 of the Oregon Constitution a warrantless search of a pretrial detainee's cell is unreasonable unless an exception to the warrant requirement can be shown.
Area(s) of Law:- Criminal Procedure
State v. Ramirez-Estrada
If it is plausible that the defense counsel did not object to inadmissible testimony as a strategic decision, the trial court's failure to take corrective action is not plain error.
Area(s) of Law:- Evidence
State v. Sills
Under the former fugitive doctrine, an appellate court has judicial authority to dismiss an appeal if a fugitive's escape significantly interfered with the appellate process.
Area(s) of Law:- Criminal Procedure
State v. Wier
Generally, a party is entitled to have a proposed jury instruction given if the instruction properly states the law applicable. However, a trial court does not err in declining to give a correct instruction that is fully covered by the trial courts other instructions.
Area(s) of Law:- Criminal Procedure
State v. Wolf
The “place of residence” exception to ORS 166.250 includes temporary residences and areas outside of residential structures.
Area(s) of Law:- Criminal Law
Talbott v. Teacher Standards & Practices Commission
A good faith answer to employment related questions that proves to be false is not knowingly misrepresenting facts under ORS 183.650(4). While a writing directly related to professional duties made while off duty does violate professional standards, a writing that is a private expression of opinion does not.
Area(s) of Law:- Administrative Law
Tilson and Tilson
Modification of spousal support award is warranted upon spouse's remarriage if the remarriage constitutes a substantial, unanticipated change in economic circumstances. Continuation of maintenance support award may be appropriate if the remarriage does not address or fully satisfy the purposes of the original spousal support award.
Area(s) of Law:- Family Law
Uhde and Uhde
If a party is deemed to have not appeared in front of the court, they are not entitled to proper service or the opportunity to object under ORCP 68 C.
Area(s) of Law:- Family Law