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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

State v. Nguyen

“Where [a] prior act and the charged conduct involve similar kinds of bad conduct the similarities between the physical elements must outweigh the differences.” State v. Davis, 279 Or App 223, 234, 381 P3d 888 (2016).

• Evidence

State v. Taylor

There are two requirements under ORS 131.505(4) for a course of conduct to constitute a single criminal episode: (1) the conduct is continuous and uninterrupted; and (2) the conduct must be a part of a single criminal objective, which shall be assessed by the time, place, and circumstances in which the conduct is joined. State v. Witherspoon states that ORS 131.505(4) requires focus to be placed on the criminals overarching criminal objective during the criminal episode, and any additional objectives during that time constitute a criminal episode, not multiple.

• Criminal Law

State v. Woodford

"As a general rule, an expert witness may not testify regarding a legal conclusion." Olson v. Coats, 78 Or App 368, 370, 717 P2d 176 (1986).

• Criminal Procedure

Wilcox v. Les Schwab Tire Centers of Oregon

“The enacted purposes of the SCRA are to provide for the national defense by postponing the time limit for servicemembers to pursue and defend claims–thereby enabling servicemembers ‘to devote their entire energy to the defendant needs of the Nation’ and ‘to provide for the temporary suspension of judicial *** proceedings *** that may adversely affect the civil rights of servicemembers during their military service.’” 50 USC 3902(1).

• Trusts and Estates

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

City of Corvallis v. Pi Kappa Phi

“A criminal municipal ordinance can conflict with ‘the criminal laws of the State or Oregon’ for purposes of Article XI, section 2, if it criminalizes behavior that the legislature has chosen should not be subject to criminal sanction, whether that legislative choice is itself reflected in a criminal statute or in a different statutory provision.” State v. Tyler, 168 Or App 600, 604, 7 P3d 624 (2000).

• Preemption

Department of Human Services v. J.E.R.

“DHS’s efforts are evaluated over the entire duration of the case, with an emphasis on a period before the [permanency] hearing sufficient in length to afford a good opportunity to assess parental progress”, with the efforts to be analyzed on “the particular circumstances of each case” and “particularly the adjudicated bases for jurisdiction.” Dept. of Human Services v. S. M. H., 283 Or App 295 (2017). Dept. of Human Services v. S. S., 278 Or App 725 (2016).

• Juvenile Law

State v. Hayne

While Article I, section 11 of the Oregon Constitution and the Sixth Amendment of the United States Constitution afford criminal defendants a qualified right to self-representation, the United States Supreme Court has held that a trial court may "insist upon representation by counsel for those competent enough to stand trial. . . but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves." Indiana v. Edwards, 554 US 164, 178, 128 S Ct 2379, 171 L Ed 2d 345 (2008).

• Criminal Procedure

State v. Nordholm

Issue preservation is a practical rule and close calls “ ‘turn on whether, given the particular record of a case, the court concludes that the policies underlying the rule have been sufficiently served.’ ” State v. Parkins, 346 Or 333, 341, 211 P3d 262 (2009).

State v. Roberts

“In general, a party is entitled to a jury instruction on the law that supports that party’s theory of the case when “(1) there is evidence to support that theory and (2) the requested instruction is a correct statement of the law.” State v. Harryman, 277 Or App 346, 356, 371 P3d 1213, rev den, 360 Or 401 (2016).”

• Criminal Law

State v. Stroud

“Even if the main issue in controversy has been resolved, collateral consequences may prevent the controversy from being moot under some circumstances.” Barnes v. Thompson, 159 Or App 383, 386, 977 P2d 431 (1999).

• Post-Conviction Relief

State v. T.T.

The testimony of “mental health experts, the person’s past acts, and the person’s apparent condition at the time of hearing” can be used to determine whether a person is a danger to others. State v. M.R., 225 Or App 569, 574, 202 P3d 221 (2009).

• Civil Commitment

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

Tucker and Tucker

“In the absence of an ambiguity, the court construes the words of a contract as a matter of law." Couch Investments, LLC v. Peverieri, 359 Or 125, 132, 371 P3d 1202 (2016).

Cedartech v. Strader

When it comes to substantial performance, the determination is “a question of fact” that is to be decided by the trial court using the preponderance of the evidence standard. American Petrofina v. D & L Oil Supply, 283 Or 183, 195, 583 P2d 521 (1978).

• Contract Law

Hill v. City of Portland

“[T]he Fifth and Fourteenth Amendments permit the government to exact a dedication of private property as a condition of approval of a land use permit if the government demonstrates (1) a nexus between a governmental interest that would furnish a valid ground for the denial of the permit and the exaction of property, and (2) that the nature and extent of the exaction are roughly proportional to the effect of the proposed development. Brown v. City of Medford, 251 Or App 42, 47, 283 P3d 367 (2012).

• Land Use

SAIF v. Dunn

“An ‘occupation disease’ is defined to include ‘any series of traumatic events or occurrences which requires medical services or results in physical disability or death,’ ORS 656.802, and, ‘prior work injuries may be considered as part of the overall “employment conditions” when evaluating the major contributing cause of an occupation disease.” Hunter v. SAIF, 246 Or App 755, 760, 268 P3d 660 (2011).

• Workers Compensation

State v. Ibarra

“In order to meaningfully ‘oppose’ such a motion under ORS 138.225, an appellant must file a response explaining why the arguments in the opening brief do present a substantial question of law, to the end that the state should file a brief and the appeal be orally argued.” State v. Ibarra, 293 Or App 268, 272 (2018).

• Criminal Law

State v. Ibarra

Under ORS 138.255, the Chief Judge and Appellate Commissioner may grant a motion for summary affirmance that does not present a substantial question of law without the concurrence of two judges when the appellant does not file a response.

• Appellate Procedure

State v. Leiby

“A seizure of a person occurs under Article I, section 9, of the Oregon Constitution: (a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual’s liberty or freedom of movement; or (b) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.” State v. Ashbaugh, 349 Or 297, 316, 244 P3d 360 (2010) (internal quotation marks omitted).

• Criminal Law

State v. McKnight

Under ORS 164.215, "A person commits the crime of first-degree burglary if 'the person enters or remains unlawfully in a building with the intent to commit a crime therein.'"

• Criminal Law

Balzer v. Moore

Under ORS 471.565, a person licensed by the Oregon Liquor Control Commission is not liable for damages caused by intoxicated patrons unless the plaintiff proves by clear and convincing evidence that (1) the licensee provided alcohol to a visibly intoxicated patron, and (2) the plaintiff did not substantially contribute to the intoxication by providing, encouraging, or facilitating the consumption of alcoholic beverages.

• Civil Procedure

Cascadia Wildlands v. Oregon Department of State Lands

(1) Under ORS 183.480(1), a person has standing when they are negatively affected by an order; ORS 183.480(1), provides that “a person is ‘aggrieved’ . . . if . . . (1) the person has suffered an injury to a substantial interest resulting directly from the challenged governmental action; (2) the person seeks to further an interest that the legislature expressly wished to have considered; or (3) the person has such a personal stake in the outcome of the controversy as to assure concrete adverseness to the proceeding.” People for Ethical Treatment v. Inst. Animal Care, 312 Or 95, 101-02, 817 P2d 1299 (1991). (2) “[a]lthough [the State Land Board] constituted a part of the administrative department of the government under the constitution, it is nevertheless governed and controlled in the exercise of its functions by the legislature and the laws emanating therefrom.” Robertson v. Low, 44 Or 587, 594, 77 P 744 (1904).

• Civil Procedure

Dept. of Human Services v. M. S. W.

“’[B]efore it can change a permanency plan to adoption, a juvenile court must be able to find affirmatively from the evidence that there is not’ another permanent plan better suited to meet the child’s health and safety needs.” Dept. of Human Services v. J. M. T. M., 290 Or App 635, 638, 415 P3d 1154 (2018).

• Family Law

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

Integrity Properties of Oregon, LLC v. Elkins

An unpreserved error may be reviewed as plain error if “(1) the error is one of law; (2) the error is apparent, that is, the legal point is obvious, not reasonably in dispute; and (3) the error appears on the face of the record, in that we need not go outside the record or choose between competing inferences to find it.” After meeting those requirements, the Court may decide whether to use its discretionary power based on the totality of the circumstances. State v. Loving, 290 Or App 805, 809, 417 P3d 470 (2018).

• Civil Law

McCormick v. State Parks 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

Ortega v. Martin

“The immunity provided by ORS 105.682 applies only to an owner of land who ‘directly or indirectly permits any person to use the land for recreational purposes.’” ORS 105.682. “To be entitled to recreational immunity, an owner of an interest in land must have made a volitional decision to open the land to the public for recreational use.” Landis v. Limbaugh, 282 Or App 284, 291, 385 P3d 1139, 1143 (2016).

• Land Use

Sitton v. Dept. of Transportation

Under ORS 30.265(6)(a), public bodies, their officers, employees, and agents "acting within the scope of their employment or duties are immune from liability" for any injury or death claim covered by any workers' compensation law.

• Qualified Immunity

State v. Haji

An amendment to an indictment is improper when the “omission of the allegations from the original indictment was a defect of ‘form’ within the meaning of Article VII,” with the matter of “form” being one that is not “essential to show that an offense has been committed.” State v. Wimber, 315 Or 103, (1992).

• Criminal Procedure

State v. Kinsey

Under ORS 137.712, the court may impose a less than minimum sentence, determined under ORS 137.700, if the court finds that the victim was not “physically injured by means of a deadly weapon; that the victim did not suffer a significant physical injury; and [t]hat the defendant does not have a previous conviction for a crime listed in subsection (4) of this section.”

• Criminal Law

State v. M. B.

“A juvenile court probation violation proceeding that is the type of juvenile court ‘adjudicatory hearing,’ within the meaning of ORS 419A.190, bars subsequent proceedings arising out of allegations based on the same conduct.” State v. S.-Q.K., 292 Or App 836, 847-48 (2018).

• Juvenile Law

State v. Provancha

Under ORS 137.123(5), when a court orders consecutive sentencing for a defendant found guilty of two incidents occurring from the same continuous conduct, it must indicate whether (a) “the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one criminal offense; or (b) the criminal offense for which a consecutive sentence is contemplated caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim or caused or created a risk of causing loss, injury or harm to a different victim than was caused or threatened by the other offense . . . .”

• Criminal Law