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Shriner's Hospital for Children v. Cox

Pursuant to ORCP 21 G(1), “defenses of lack of personal jurisdiction and insufficient or improper service will be ‘waived’ if a defendant does not assert them in a timely fashion. See ORCP 21 G(1) (providing that a defendant will waive those defenses if they are not raised either in an ORCP 21 motion or in the first responsive pleading).

• Civil Law

Markley/Lutz v. Rosenblum

The “subject matter” of a ballot title is “the ‘actual major effect’ of a measure or, if the measure has more than one major effect, all such effects (to the limit of the available words).” Lavey v. Kroger, 350 Or 559, 563, 258 P3d 1194 (2011); ORS 250.035(2).

• Ballot Titles

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

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

• Juvenile Law

Griffin v. Dish Network Services

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

• Workers Compensation

Smith v. Central Point Pawn, LLC

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

• Civil Law

Liberty Metal Fabricators v. Lynch Co.

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

• Workers Compensation

State v. B.K.

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

• Civil Commitment

Maxfield v. Cain

In determining whether the Court can answer the question of prejudice on remand, the Supreme Court has ruled “it is inappropriate to affirm the post-conviction court’s judgment on prejudice grounds” when a court has applied the wrong standard for prejudice. Green v. Franke, 357 Or 301, 350 P3d 188 (2015).

• Post-Conviction Relief

State v. Cardona

Under OEC 404(3), “evidence of other crimes, wrongs, or acts is admissible in a criminal trial for noncharacter purposes, including to establish defendant’s motive for the charged act.” State v. Tena, 362 Or 514, 520, 412 P3d 175 (2018). Whether evidence is relevant to motive is a question of law. State v. Carreiro, 185 Or App 19, 22, 57 P3d 910 (2002). “Motive is a cause or reason that moves the will and induces action, an inducement which leads to or temps the mind to commit an act. State v. Wright, 283 Or App 160, 171, 387 P3d 405 (2016).

• Evidence

Wolfe v. Brown

Under ORS 183.450(1), “Irrelevant, immaterial or unduly repetitious evidence shall be excluded but erroneous rulings on evidence shall not preclude agency action on the record unless shown to have substantially prejudiced the rights of a party.” “Evidence is relevant so long as it increases or decreases, even slightly, the probability of the existence of a fact that is of consequence to the determination of the action.” State v. Davis, 269 Or App 532, 541, 345 P3d 499, rev den, 358 Or 69 (2015).

Reeves v. Nooth

Under ORS 138.530(1), “a court must grant petitioner post-conviction relief if he established, ‘more likely than not,’ that he is actually innocent of a conviction in the challenged judgment.” To meet the ‘more likely than not’ standard, a petitioner must “persuade the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Schlup v. Delo, 513 US 298, 327, 115 S Ct 851, 130 LEd 2d 808 (1995).

• Post-Conviction Relief

Maldonado and Freed

“Marital property” is all the property owned by the parties at the time of dissolution, “and can include property owned prior to marriage. Massee and Massee, 328 Or 195, 201 n 2, 970 P2d 1203 (1999) (citing Pierson). Under ORS 107.105(1)(f), the dissolution court is required to make a distribution of marital property that is “just and proper in all the circumstances.”

• Family Law

DHS v. T.L.B.

Even if DHS satisfies the statutory “clear and convincing” evidence required to terminate a parent’s rights, “the court may not terminate a parent’s rights unless clear and convincing evidence also establishes that termination is in the child’s best interests.” ORS 419B.500; State ex rel SOSCF v. Stillman, 333 Or 135, 145-146, 36 P3d 490 (2001). The evidence is said to be “clear and convincing” when “it makes the existence of a fact highly probable or when it is of extraordinary persuasiveness.” Dept. of Human Services v. R.K., 271 Or App 83, 88, 351 P3d 68, rev den, 357 Or 640 (2015).

• Juvenile Law

Capital Card v. Kerr Contractors Inc.

In determining whether a contract provision is ambiguous, the court should review the provision to determine “if it has no definite significance or is capable of more than one plausible – that is, sensible and reasonable – interpretation.” Holloway v. Republic Indemnity Co. of America, 341 Or 642, 650, 147 P3d 329 (2006).

• Contract Law

State v. Hardges

“It is a familiar rule that the meaning of words in a statute may be clarified . . . by reference to other words in the same sentence or provision.” Goodwin v. Kingsmen Plastering Inc., 359 Or 694, 702, 375 P3d 463 (2016). Here, when reviewing the language of ORS 137.540(1)(m), “the state acknowledges that the text . . . ‘report as required and abide by the direction of the supervising officer’ suggest that the type of ‘direction’ it authorizes probation officers to impose – and that the court may enforce through probation violation proceedings – ‘should generally relate to a probationer’s reporting requirements.’”

• Parole and Post-Prison Supervision

Central Oregon LandWatch v. Deschutes County

Under OAR 660-023-0040(4), “the local government ‘shall analyze the ESEE consequences that could result from decisions to allow, limit, or prohibit a conflicting issue.’ In doing so, the local government, in its ESEE analysis ‘must consider any applicable statewide goal or acknowledged plan requirements, including the requirements of Goal 5.’”

• Land Use

West Hills Development Co. v. Doughman

In deciding whether there is authority to make an agreement, “those dealing with the governmental body must know the extent of their authority.” Harsh Investment Corp. v. State Housing Division, 88 Or App 151, 744 P2d 588 (1987), rev den, 305 Or 273 (1988). The county code and WCRO 2010-098 expressly provided that, “credit eligibility determinations shall be determined by the Director.” WCC 3.17.070 (TDT); WCRO 2010-098, Attachment A, A, § 070 (NBTSDC).

• Contract Law

Crowley v. City of Hood River

Under ORS 197.829(1), “LUBA must defer to a local government’s interpretation of its comprehensive plan and land use regulations, unless the board determines that the local government’s interpretation is inconsistent with the express language, purpose, or underlying policy of the comprehensive plan or use regulation.”

• Land Use

Eddy v. Anderson

Under ORS 90.130, “a tenant may elect to forego any remedy under the ‘essential services’ statute and to pursue a remedy under ORS 90.360(2) instead, the tenant nevertheless must act in ‘good faith.’”

• Landlord Tenant

State v. Anderson

Under ORS 162.315(2)(c), the term “resists” means “the use or threatened use of violence, physical force or any other means that creates a substantial risk of physical injury to any person and includes . . . behavior clearly intended to prevent being taken into custody by overcoming the actions of the arresting officer. The behavior does not have to result in actual physical injury to an officer.”

• Criminal Law

State v. Clay

Pursuant to past Oregon Supreme Court decisions, “an emergency aid exception to the . . . warrant requirement is justified when police officers have an objectively reasonable belief, based on articulable facts, that a warrantless entry is necessary to either render immediate aid to persons, or assist persons who have suffered, or who are imminently threatened with suffering, serious physical injury or harm.” State v. Baker, 350 Or 641, 650, 260 P3d 476 (2011).

• Criminal Law

Oregon Psychiatric Partners v. Henry

When deciding whether a noncompetition agreement is enforceable, Oregon law states that “when an agreement is partly legal and partly illegal, if the legal may be separated from the illegal part, the legal part will be enforced.” Montara Owners Assn. v. La Noue Development, LLC, 357 Or 333, 341, 353 P3d 563 (2015).

• Contract Law

Boatwright v. DHS

When an agency’s interpretation of its own rule is challenged, “we give significant deference to that interpretation and are required to affirm it if it is ‘plausible,’ that is, if it is not inconsistent with the wording of the rule itself or with the rule’s context, or with any other source of law.” Don’t Waste Oregon Com. v. Energy Facility Siting, 320 Or 132, 142, 881 P2d 119 (1994).��

• Administrative Law

State v. Walraven

By statutory definition, “an ‘order of conditional release’ under ORS 420A.206(2) is separate and apart from a dispositional order under ORS 420A.203(4), both in substance and in time, and each order is separately appealable. Paragraph (a) of ORS 420A.206(6) does not authorize us to review the substance of a dispositional order entered under ORS 420A.203(4) on appeal from an order of conditional release entered under ORS 420A.206(2)."

• Criminal Procedure

Ferry v. Board of Parole

Under ORS 144.102(4)(b), “if a person is on post-prison supervision for a sex crime as defined in ORS 163A.005, the board ‘shall include’ thirteen specific conditions in the person’s post-prison supervision conditions. One of those thirteen conditions is [a] prohibition against direct or indirect contact with the victim, unless approved by the victim . . . and the board.” ORS 144.102(4)(b)(G).

• Parole and Post-Prison Supervision

McCormick v. State �����Ƶs and Recreation Dept.

Under ORS 105.682, “a landowner is entitled to recreational immunity from liability for harm resulting from the recreational use of the owner’s land when . . . the owner ‘directly or indirectly permits any person to use the land for recreational purposes.’” To “permit” is to say that, “an owner must have the authority to make a volitional decision whether or not to allow recreational use on the land in question.” Ortega v. Martin, 293 Or App 180, . . . P3d . . . (2018).

• Land Use

Miller v. SAIF

In determining whether an employee should be compensated under a work-related injury, the court should review the evidence and if, “when, the medical evidence identifies a condition causing the claimant’s symptoms and established that the condition developed gradually over time, the claimant has not experienced an injury, and the claim must be analyzed as an occupation disease.” Jewell v. SAIF, 291 Or App 703, 705, . . . P3d . . . (2018).

• Workers Compensation

Velasco v. State of Oregon

In determining whether a defendant has been convicted of a criminal offense, the court should look for “four distinct events: (1) defendant’s act of pleading guilty or a jury’s act in reporting a verdict of guilty; (2) acceptance by the trial judge of the guilty plea or verdict; (3) conviction of the defendant on the plea or verdict; and (4) pronouncement and entry of defendant’s sentence.” State v. McDonnell, 306 Or 579, 581-82, 761 P2d 921 (1988).

• Post-Conviction Relief

Busch v. McInnis Waste Systems, Inc.

In determining whether the court should apply ORS 31.710(1), the court should consider “the nature of plaintiff’s injuries, the lack of any quid pro quo in ORS 31.710(1), and our conclusion [in Vasquez] that ‘the legislature’s reason for enacting the noneconomic damages cap . . . cannot bear the weight of the dramatic reduction in noneconomic damages that the statute requires for the most grievously injured plaintiffs,’ reducing plaintiffs’ noneconomic damages awards to $500,000 would leave them without a ‘substantial’ remedy as required by Article I, section 10.” Vasquez v. Double Press Mfg., Inc., 288 Or App 503, 406 P3d 225 (2017), rev allowed, 362 Or 665 (2018).

• Remedies

State v. Garrett

In deciding whether an instruction is coercive, the court reviews the words to determine whether it: “(1) encourages the minority of the jury to reconsider its views in light of the majority’s position; (2) is not balanced by an emphasis on adhering to conscientiously held opinions; (3) refers to the necessity or expense of a retrial; and, most of all, (4) informs the jury that it has an obligation to continue deliberating until it reaches a verdict or that the court will not declare a mistrial as the result of a deadlocked jury.” State v. Marsh, 260 Or 416, 443, 490 P2d 491 (1971), cert den, 406 US 974 (1972).

• Criminal Law

State v. Thomas

A trial court properly orders a defendant to pay attorney fees “where the defendant himself has posted a security deposit subject to the express condition that the monies could be used to satisfy the defendant’s financial obligations.” State v. Twitty, 85 Or App 98, 106, 735 P2d 1252, rev den, 304 Or 56 (1987).

• Sentencing

Bayview Loan Servicing v. Chandler & Newville

When deciding whether a party is entitled to pursue foreclosure in order to resolve another party’s interest, previous court’s have held, “where a first mortgagee acquires the mortgagor’s interest, the first mortgage does not merge with it so as to elevate the second mortgage to a position of a first and only mortgage. See W.J. Seufert Land Co v. Greenfield, 273 Or 408, 412, 541 P2d 814 (1975).

• Property Law

Conte v. City of Eugene

In determining the sufficiency of an appearance, “a person need not assert a position on the merits of the proposed land use action. A bare, neutral appearance, such as a letter requesting that the local government accept the letter as an appearance and provide notice of the decision, is sufficient. Nonetheless, the person must, at a minimum, submit a document . . . that the local government would reasonably recognize as an appearance by that person.” Century Properties, LLC v. City of Corvallis, 51 Or LUBA 572, 586, aff’d, 207 Or App 8, 139 P3d 990 (2006).

• Land Use

Wright v. PERB

Although ORS 238.450(4) states “that a member is entitled to judicial review under ORS 183.484 of a written decision made by PERS on a disputed benefits computation under ORS 238.450, that provision can confer jurisdiction on a circuit court only if the decision constitutes a ‘final order’ as that term is defined in ORS 183.310(6)(b). See ORS 183.480(3).

• Administrative Law

State v. Hudspeth

When deciding whether there is a Confrontation Clause violation, as a general matter, “so long as the defendant is given the full and fair opportunity for cross-examination, a witness’s lack of memory of the statements or of the veracity of the statements does not give rise to a Confrontation Clause violation.” State v. Townsend, 290 Or App 919, 922 417 P3d 571 (2018).

• Criminal Procedure

Ogle v. Nooth

A post-conviction court may grant relief relating to matters that are “within the scope of [the] pleaded claims,” Reynolds v. Lampert, 170 Or App 780, 787, 13 P3d 1038 (2000), or “directly traceable to the allegations of the petition.” Abbott v. Baldwin, 178 Or App 289, 291, 36 P3d 516 (2001), rev den, 334 Or 75, cert den, 537 US 901 (2002).

• Post-Conviction Relief

State v. Gonzalez

In determining whether a guest has a privacy right when in someone else’s home, “the scope of an invitation to be on or to use property is inherently a fact-based inquiry that is affected by property-law principles.” State v. Howard/Dawson, 342 Or 635, 642, 157 P3d 1189 (2007).

• Criminal Law

State v. Gonzales

In the absence of overwhelming evidence of guilt, courts have held that “where erroneously admitted hearsay evidence significantly reinforces the . . . testimony at trial, the admission of those statement constitutes error requiring reversal of the defendant’s conviction.” State v. Wood, 253 Or App 97, 101, 289 P3d 348 (2012).

• Evidence

Albar and Najjar

“A court may exercise personal jurisdiction over a nonresident consistent with constitutional due process guarantees only if the nonresident has purposefully established sufficient ‘minimum contacts’ with the forum state ‘such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.’” International Shoe Co. v. State of Washington, Office of Unemployment Compensation and Placement, 326 US 310, 316, 66 S Ct 154, 90 L Ed 95 (1945).

• Family Law

State v. Davis-Pinney

In similar situations where the trial court erroneously prohibited merger, “the Court vacated convictions where the trial court erroneously concluded that ORS 161.067(3) precluded merger and remanded for the trial court to consider the potential applicability of ORS 161.067(2).” State v. Reeves, 250 Or App 294, 280 P3d 994 (2012).

• Sentencing

Woodroffe v. State of Oregon

It is improper for a trial court to grant summary judgment on an issue that is not raised in the moving party’s motion. Eklof v. Steward, 360 Or 717, 736, 385 P3d 1074 (2016).

• Civil Law

State v. McMillin

When determining who is the victim of a crime, “the court examines the statute to identify the gravamen of the crime and determine the class of person whom the legislature intended to directly protect by ay of the criminal proscription. State v. Moncada, 241 Or App 202, 250 P3d 31 (2011), rev den, 351 Or 545 (2012). Under ORS 161.165(1), “a person is not criminally liable for the conduct of another constituting a crime if” the “person is a victim of that crime.”

• Criminal Law

Blevins v. Oregon Health Authority

When submitting a final administrative order, “an administrative agency must state its factual findings and articulate a ‘rational connection between the facts it finds and the legal conclusions its draws from them,’” in order to meet the substantial reason rule. Drew v. PSRB, 322 Or 491, 499-500, 909 P2d 1211 (1996).

• Administrative Law

State v. Goennier

In the case of a warrantless search, “it is the state’s burden to show that the search was supported by probable cause. Probable cause exists if the facts on which the officers relied would ‘lead a reasonable person to believe that seizable things will probably be found in the location to be searched.’” State v. Anspach 298 Or 375, 381, 692 P2d 602 (1984).

• Criminal Procedure

State v. Wilson

A police officer’s unaided observation of a persons conduct, from a lawful vantage point, should not be suppressed as the product of an unlawful search when, “persons conduct themselves in otherwise protected areas in such a way that their words or acts can plainly be seen or heard outside without any special effort.” State v. Louis, 296 Or 57, 61, 672 P2d 708 (1983).

• Criminal Law

Kutz v. Lee

When bringing an action under the Oregon Tort Claims Act, “No action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 to 30.300 shall be maintained unless notice of claims is given as required by this section. For claims other than wrongful death, the notice period is 180 days. An action arising from any act or omission of a public body or an officer, employee, or agent of a public body within the scope of OTCA shall be commenced within two years after alleged loss or injury." ORS 30.275(1), (2)(b), (9).

• Land Use

Nesbit v. Bd. of Lic. Pro. Counselors and Therapists

In deciding whether a subject is proper for summary determination, “a discretionary sanction is not a proper subject for summary determination, because whether an agency should impose a particular sanction is not a question of law.” King v. Dept. of Public Safety Standards, 289 Or App 314, 412 P3d 1183 (2017).

• Administrative Law

Payne v. Kersten

The granting of summary judgment based on issue preclusion happens only when, “it can be conclusively determined from the record that all of the requirements for issue preclusion are satisfied.” See Johnson & Lechman-Su, P.C., 272 Or App at 246.

• Civil Law

C.I.C.S. Employment Services v. Newport Newspapers

Under ORS 31.152(1), "Oregon’s anti-SLAAP statutes requires a defendant to file a special motion to strike within 60 days from service of the complaint, although the trial court may exercise its discretion to permit a late filing." See ORS 31.152(1).

• Administrative Law

Dept. of Human Services v. J. J. B.

When a juvenile court wants to establish jurisdiction over a child they must show “sufficient evidence” and “establish a nexus” related to the “conditions or circumstances that endanger the [child’s] welfare.” ORS 419B.100(1)(c). Dept. of Human Services v. A. W., 276 Or App 276, 278, 367 P3d 556 (2016). Dept. of Human Services v. C.J.T., 258 or App 57, 62, 308 P3d 307 (2013).

• Juvenile Law

Klamath Tribute Center v. Mortuary and Cemetery Bd.

When courts are required to interpret federal regulation, a federal court looks to the plain meaning of the wording or the administrative interpretation, if neither are present, “the court considers such factors as the overall purpose of the governing statute, the overall purpose of the regulation, the history of the regulation, and the practical consequences of suggested interpretations to determine the intent of the enacting body.” Hagan v. Gemstate Manufacturing., Inc., 328 Or 535, 545, 982 P2d 1108 (1999).

• Administrative Law

Thorson v. Bend Memorial Clinic

The standard for judgment as matter of law states for a moving party, “that standard is satisfied when, viewing the evidence in the record and all reasonable inferences that may be drawn from it in favor of the nonmoving party, no reasonable factfinder could return a verdict for the nonmoving party.” Chapman v. Mayfield, 358 Or 196, 204, 361 P3d 566 (2015).

• Tort Law

State v. Rhyne

When a Defendant challenges the validity of their subsequent statement or consent to search, “the State carries the burden of demonstrating that the consent was voluntary and not the product of police exploitation of an illegal search or seizure.” State v. Unger, 356 Or 59, 74-75, 333 P3d 1009 (2014).

• Criminal Law

State v. Walls

In order for officers to seize property under Article I, section 9, a “police officer must obtain a warrant that is supported by probable cause unless an exception to the warrant requirement applies,” such as exigent circumstances. State v. Kosta, 304 Or 549, 553, 748 P2d 72 (1987). State v. Stevens, 311 Or 119, 126, 806 P2d 92 (1991).

• Criminal Law

Morgan v. Valley Property and Casualty Ins. Co.

In order for an exhibit to be admissible under the terms of the Oregon Evidence Code, the exhibit must be considered a business record which includes a “duty to report” requirement. 289 Or App at 455, 461 (citing State v. Cain, 260 Or App 626, 632-34, 320 P3d 600 (2014).

• Evidence

State v. Cole

Under ORS 164.215(1), A person commits the crime of burglary in the second degree when a person "enters or remains unlawfully in a building with the intent to commit a crime therein." If the building is a dwelling, however, the crime is elevated from second-degree burglary to burglary in first degree. ORS 164.225(1).

• Criminal Law

State v. Page

A charging instrument must show on its face that the requirements of ORS 132.560 have been met for a demur to be denied. State v. Poston, 277 Or App 137, 370 P3d 904 (2016).

• Criminal Law