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					                           COURT OF APPEALS
                                              Media Release

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                                                December 29, 2010

The Court of Appeals issued these opinions:
        Cheryl Christine Cook and Robert Dale Cook
               (A137259 - Clackamas County Circuit Court)
        United Airlines v. Bradley S. Clark
               (A139521 - Workers' Compensation Board)
        Unifund CCR Partners v. Roberta Kelley
               (A142367 - Multnomah County Circuit Court)
        Shelly A. Slater and Paul J. Slater
               (A137465 - Crook County Circuit Court)
        Jeanne Biggerstaff v. Board of County Commissioners of Yamhill County
               (A140978 - Yamhill County Circuit Court)
        T. J. Kleikamp v. Board of County Commissioners of Yamhill County
               (A140999 - Yamhill County Circuit Court)
        Frank Rood v. Coos County
               (A141994 - Coos County Circuit Court)
        State of Oregon v. B. B.
               (A143818 - Multnomah County Circuit Court)
        State of Oregon v. Mark William Mitchele
               (A138931 - Multnomah County Circuit Court)
        John Latta Associates, Inc. v. Sergey A. Vasilchenko
               (A142044 - Multnomah County Circuit Court)
        Portland State University Chapter of the American Association of University Professors v.
        Portland State University
               (A138895 - Employment Relations Board)
        Jeld-Wen, Inc. v. Pacificorp
               (A139947 - Klamath County Circuit Court)

                                                          1
       State ex rel Juvenile Department of Deschutes County v. N. L. D.
              (A140269 - Deschutes County Circuit Court)
       Linda Griffin v. Allis-Chalmers Corporation Product Liability Trust
              (A138278 - Multnomah County Circuit Court)
       Industrial Customers of Northwest Utilities v. Public Utility Commission of Oregon
              (A138879 - Public Utility Commission of Oregon)
       State of Oregon v. Maximilliano Alvarez
              (A139512 - Washington County Circuit Court)
       State of Oregon v. Theodore Wayne Hiner, Sr.
              (A138610 - Polk County Circuit Court)
       Brian J. Stacy v. Employment Department
              (A141121 - Employment Appeals Board)
       Department of Human Services v. S. T.
              (A144243 - Linn County Circuit Court)
       Joe Petroff v. John E. Williams
              (A138880 - Wasco County Circuit Court)
       State of Oregon v. Jonathan R. Olinger
              (A139190 - Washington County Circuit Court)
       Department of Consumer and Business Services v. Michael J. Clements
              (A141287 - Department of Consumer and Business Services)
       Jim Pliska v. Umatilla County
              (A146192 - Land Use Board of Appeals)
       Larry D. LeVasseur v. Lowell Armon
              (A137771 - Wallowa County Circuit Court)
       Larry L. Luethe v. Multnomah County
              (A138836 - Multnomah County Circuit Court)
       A. L. Bruner v. Josephine County
              (A140018 - Josephine County Circuit Court)
       Waste Not Of Yamhill County v. Yamhill County
              (A146170 - Land Use Board of Appeals)
       State of Oregon v. E. V.
              (A142191 - Deschutes County Circuit Court)
       State of Oregon v. Daniel Ray Gale
              (A140156 - Washington County Circuit Court)

The Court of Appeals issued these per curiam opinions:
       State of Oregon v. Karen Marie Baker
              (A141165 - Lane County Circuit Court)
       State of Oregon v. Jason Oliver Hindle
              (A141432 - Washington County Circuit Court)
       State of Oregon v. Frank Lumpkins, Jr.
              (A141532 - Washington County Circuit Court)
       State of Oregon v. Joshua Devain Dobson
              (A142144 - Beaverton Municipal Court)
       State of Oregon v. Joon Bum Ko
              (A142368 - Washington County Circuit Court)

                                             2
       State of Oregon v. Kenneth Dwayne Brown
              (A142613 - Klamath County Circuit Court)

The Court of Appeals affirmed these cases without opinion:
       State of Oregon v. G. W.
              (A140038 - Deschutes County Circuit Court)
       State of Oregon v. C. R.
              (A141534 - Washington County Circuit Court)
       Rocky Robison v. Don Mills
              (A141594 - Umatilla County Circuit Court)
       Richard R. Rasmussen v. Andrew D. Russell
              (A141780 - Clackamas County Circuit Court)
       State of Oregon v. Randall Leroy Harless
              (A141785 - Coos County Circuit Court)
       Darell Kaseberg v. Davis Wright Tremaine, LLP
              (A141824 - Multnomah County Circuit Court)
       Renee Stephens v. Nike, Inc.
              (A141956 - Washington County Circuit Court)
       State of Oregon v. Sylvester Alcaraz
              (A142499 - Marion County Circuit Court)
       State of Oregon v. D. S. F.
              (A142537 - Clackamas County Circuit Court)
       Gregory Wayne Ferguson v. Don Mills
              (A142557 - Umatilla County Circuit Court)
       Terrence K. Stell v. Paula Myers
              (A142681 - Multnomah County Circuit Court)
       Sandra M. Killings and Abraham Killings
              (A143206 - Washington County Circuit Court)
       Janette Haynes v. Jennifer Oliver
              (A143295 - Klamath County Circuit Court)
       Carlos Tamayo, Jr. v. San Juanita Gloria Hernandez
              (A143455 - Washington County Circuit Court)
       Kevin Marker v. Robert Marker
              (A143553 - Lane County Circuit Court)
       Belinda Jackson v. Tri-County Metropolitan Transportation District of Oregon
              (A143671 - Multnomah County Circuit Court)
       Richard Walsh v. State of Oregon
              (A143676 - Jackson County Circuit Court)
       Department of Human Services v. R. F.
              (A146034 - Union County Circuit Court)
       Department of Human Services v. J. V.
              (A146148 - Multnomah County Circuit Court)

                                          *****



                                             3
Cheryl Christine Cook and Robert Dale Cook
(Brewer, C. J.)

Husband appeals from a judgment of unlimited separation, assigning error to the property division and
spousal support awards that the trial court made. Husband challenges the property division by arguing
that he should have received outright awards of his medical practice, retirement funds, and a residence
that he acquired during the pendency of the dissolution using those retirement funds (the Johnson Road
property). Husband also challenges the award of indefinite maintenance spousal support in the amount
of $8,000 a month. The parties were married for 10 years and had cohabited for two years before that.
At the time of dissolution, husband was 69 years old and earning approximately $300,000 annually
working as a surgeon. Wife was 60 years old and had a high school education, had prior work
experience as an athletic club manager, and had worked as husband's office assistant during the marriage
earning approximately $21,000 per year. The parties owned a home worth approximately $1,500,000
on 7.3 acres that was subject to a potential Measure 37 claim for additional buildable lots. Husband also
had retirement accounts that he had established before the marriage. Held: On de novo review, the
Court of Appeals held that the trial court's allocation of the retirement accounts was not just and proper
in all the circumstances because wife did not contribute to the creation or preservation of those
accounts, and because the remainder of the parties' marital estate was evenly divided. The Court of
Appeals also modified the property division to grant to husband the equity that he invested in the
Johnson Road property, and thus reduced the equalizing judgment by $23,250. The Court of Appeals
affirmed the trial court's equal division of husband's medical practice and their remaining assets, and the
trial court's award of spousal support. Judgment of unlimited separation modified to award husband's
retirement accounts and the equity in the Johnson Road property to husband; equalizing judgment
reduced to $196,538; otherwise affirmed.

United Airlines v. Bradley S. Clark
(Landau, P. J.)

Employer seeks review of an order of the Workers' Compensation Board determining that claimant's
arthritic thumb condition is related to his 14 years of work as a baggage handler. Employer contends
that the board failed to adequately explain two discrepancies in the medical opinion on which it relied,
and for that reason the board's order is not supported by substantial reason or substantial evidence.
Held: The board's order is supported by substantial evidence and substantial reason, because the
purported discrepancies in the medical opinion either are resolved by reference to the record or do not
bear on an issue in dispute. Affirmed.

Unifund CCR Partners v. Roberta Kelley
(Landau, P. J.)

Plaintiff appeals a final judgment, arguing that the trial court erred in granting defendant relief from
default judgment under ORCP 71 B(1)(d). According to plaintiff, (1) the trial court erred because
defendant failed to file her ORCP 71 B motion with the clerk of the court and, therefore, the court did
not have subject matter jurisdiction over the matter; (2) the court erred in granting relief under ORCP
71 B(1)(d) because the lack of notice of intent to seek a default did not render the judgment void; and
(3) the court erred in granting relief because defendant failed to accompany her motion for relief from
judgment with a responsive pleading. Held: In this case, the requirement that defendant file her motion
for relief from default judgment with the clerk of the court was merely a technical requirement that did

                                                  4
not deprive the court of subject matter jurisdiction to decide the issue on the merits. Further, the court
was correct that failure to comply with the notice requirement before obtaining default judgment under
ORCP 69 A(1) results in the judgment being void, making relief under ORCP 71 B(1)(d) proper. Last,
because defendant's motion for relief was granted under ORCP 71 B(1)(d), it was not necessary for
defendant to attach a copy of a responsive pleading to her motion. Affirmed.

Shelly A. Slater and Paul J. Slater
(Haselton, P. J.)

Husband appeals from a dissolution judgment and raises three assignments of error, including,
particularly, the trial court's valuation of husband's chiropractic business. Evidence at trial established
that husband's chiropractic business had some goodwill value, but the experts disagreed as to whether,
or to what extent, that added value should be characterized as "entity goodwill," i.e., goodwill
attributable to the business, or "personal goodwill," i.e., goodwill attributable to husband individually.
However, both experts agreed that, were husband to sell his practice, it would be necessary for him to
enter into a noncompetition covenant. Husband testified that he had no intention to retire, change
careers, or sell his business. The trial court ultimately assigned a value to the business that assumed that
husband would execute a noncompetition covenant. On appeal, husband argues that it was not proper,
when valuating a business for purposes of calculating a property distribution at divorce, for the trial
court to include the value of a putative noncompetition covenant because such a covenant corresponds
to the value of the goodwill "personal" to husband and, accordingly, constitutes a taking of his
post-divorce income. Held: The trial court erred in adopting a valuation of husband's chiropractic
business that was predicated on the assumption that husband would execute a noncompetition covenant
because the value of that noncompetition covenant attributable to husband's individual skills, qualities,
reputation, or continuing presence, is not "goodwill," i.e., an intangible income-producing asset of the
business, for the purposes of valuation in the marital dissolution context. Vacated and remanded for
reconsideration of property division; otherwise affirmed.

Jeanne Biggerstaff v. Board of County Commissioners of Yamhill County
(Haselton, P. J.)

Petitioners appeal the circuit court's judgment in a writ of review proceeding that affirmed the county's
determination that respondents Ralph E. and Norma J. Johnson (the Johnsons) have a vested right to
complete development of a 41-lot residential subdivision in compliance with county and state waivers
issued pursuant to Ballot Measure 37 (2004). On appeal, petitioners contend that the reviewing court
misconstrued the applicable law in sustaining the vesting officer's determination that the Johnsons have a
vested right to complete that development because the Johnsons' expenditures were not made in good
faith and because there was inadequate consideration of the expenditure ratio (viz., the ratio of
expenditures to total project cost). For their part, the Johnsons raise myriad alternative bases for
affirmance, contending, inter alia, that Measure 49 does not apply retroactively and is unconstitutional
under various provisions of the state and federal constitutions. Held: Consistently with Friends of
Yamhill County v. Board of Commissioners, 237 Or App 149, 238 P3d 1016 (2010), the Court of
Appeals rejected petitioners' legal contention concerning good faith but concluded that the court should
have remanded the decision to the county to determine the total project cost and to give proper weight
to the expenditure ratio under the circumstances of this case. Further, the court declined, as a prudential
matter, to address and resolve those alternative bases for affirmance that the court had not previously
rejected in other cases. Reversed and remanded.

                                                   5
T. J. Kleikamp v. Board of County Commissioners of Yamhill County
(Haselton, P. J.)

Petitioners appeal the circuit court's judgment in a writ of review proceeding that affirmed the county's
determination that respondents Glenn, Donald, and Sharlene Gregg (the Greggs) have a vested right to
complete development of a 13-lot residential subdivision and equestrian center in compliance with
county and state waivers issued pursuant to Ballot Measure 37 (2004). On appeal, petitioners contend
that the reviewing court misconstrued the applicable law in sustaining the vesting officer's determination
that the Greggs had a vested right to complete that development because (1) the Greggs had not
initiated construction of residences; (2) a significant portion of the Greggs' development expenditures
were not made in good faith; and (3) there was not adequate consideration of the expenditure ratio--that
is, a comparison of the relevant expenditures to the "total project cost." Held: Consistently with
Friends of Yamhill County v. Board of Commissioners, 237 Or App 149, 238 P3d 1016 (2010), the
Court of Appeals rejected petitioners' legal contentions concerning the initiation of construction and
good faith, but concluded that the reviewing court should have remanded the decision to the county to
determine the total project cost and to give proper weight to the expenditure ratio in the circumstances
of this case. Reversed and remanded.

Frank Rood v. Coos County
(Haselton, P. J.)

After the trial court denied plaintiffs' motion for partial summary judgment and granted defendants'
motions, it entered a judgment dismissing plaintiffs' declaratory judgment, impairment of contract, and
promissory estoppel claims that concerned their right, after the enactment of Ballot Measure 49 (2007),
to develop property pursuant to waivers issued by defendants under Ballot Measure 37 (2004).
Plaintiffs appeal that judgment. Held: (1) Consistently with Smejkal v. DAS, 239 Or App 553, ___ P3d
___ (2010), the Court of Appeals rejected plaintiffs' contentions concerning their claims for impairment
of contract and violation of constitutional separation of powers protections. (2) The court held that,
with regard to plaintiffs' claim for declaratory relief concerning plaintiffs' purported common law vested
right to complete development in compliance with Measure 37 waivers, defendants were entitled to
judgment as a matter of law because plaintiffs had not identified evidence in the summary judgment
record demonstrating expenditures that are arguably "substantial" for purposes of vesting pursuant to
Measure 49 under the court's reasoning in Friends of Yamhill County v. Board of Commissioners, 237
Or App 149, 238 P3d 1016 (2010). (3) The court held that plaintiffs' claim for promissory estoppel
failed under the court's reasoning in Smejkal for lack of a cognizable promise. Vacated and remanded
with instructions to enter a judgment declaring that defendants' actions do not violate the constitutional
provisions concerning separation of powers and that plaintiffs do not have a common law vested right to
complete and continue the use as provided in the Measure 37 waivers; otherwise affirmed.

State of Oregon v. B. B.
(Haselton, P. J.)

Appellant appeals from a judgment of involuntary civil commitment, contending that the record is
insufficient to support the trial court's determination that she was a danger to herself as a result of her
mental disorder. ORS 426.005(1)(e)(A). Appellant had a pattern of "unpredictably and impulsively"
running away when the voices that she hears tell her that she or her child is in some kind of danger.
Additionally, appellant was "confused" and "disorganized," and, on one occasion, appellant fell while

                                                    6
carrying her child. The trial court determined that, given that history, appellant would eventually place
herself in "harm's way." Held: Appellant's conduct in "unpredictably and impulsively" running away is
insufficient to support civil commitment on a danger to self basis because nothing in the record
establishes that appellant's behavior resulted in any serious harm or proximate risk of such harm, much
less that reoccurrence of such conduct will present a nonspeculative risk in the near future. Reversed.

State of Oregon v. Mark William Mitchele
(Armstrong, J.)

Defendant appeals a judgment of conviction for unlawful possession of methamphetamine, ORS
475.894. He assigns error to the trial court's denial of his motion to suppress evidence found on his
person, contending that the arresting officers unlawfully stopped him without reasonable suspicion,
which led to the discovery of a controlled substance in his pocket. Specifically, defendant argues that
the informant's tip that the trial court determined supported the officers' reasonable suspicion was not
reliable, and alternatively that, if it was, it did not disclose criminal activity, and that his furtive
movements alone did not provide reasonable suspicion justifying the stop. Held: The totality of the
circumstances known to the officers when the stop occurred, which included the informant's reliable
report, the frequency of burglaries in the neighborhood, defendant's presence on a frequently used
escape route, and defendant's furtive movements when the officers approached defendant in their patrol
car, establishes objectively reasonable suspicion justifying the stop. Consequently, defendant's
encounter with the officers was a lawful stop under ORS 131.615 and, in turn, a lawful seizure under
Article I, section 9, of the Oregon Constitution. Affirmed.

John Latta Associates, Inc. v. Sergey A. Vasilchenko
(Armstrong, J.)

Plaintiff appeals an order in which the trial court denied plaintiff's motion to authorize a sale of
residential real property. Plaintiff obtained a judgment against defendant in Multnomah County in 2006
that included an award of money. Pursuant to ORS 18.150(2)(a), the judgment constituted a lien
against all real property owned by defendant in Multnomah County, including a house that defendant
sold to his brother after the judgment lien had attached to it. Plaintiff sought court authorization to sell
the house under a writ of execution to enforce its judgment. ORS 18.904; ORS 18.906. The trial court
denied plaintiff's motion on the ground that defendant's brother had purchased the house in good faith
without having actual notice of plaintiff's judgment and, hence, that the brother's interest in the property
was not subject to the lien of plaintiff's judgment. On appeal, plaintiff asserts that the trial court erred
because defendant's brother had constructive notice of plaintiff's judgment when he bought the house
and, in turn, the good faith purchaser exception in ORS 18.165 does not apply to the brother's purchase.
Held: The trial court erred in concluding that defendant's brother was a purchaser in good faith under
ORS 18.165(1)(a) (2005) and in denying plaintiff's motion for an order authorizing an execution sale of
the house to satisfy plaintiff's judgment. Reversed and remanded.

Portland State University Chapter of the American Association of University Professors v.
Portland State University
(Wollheim, J.)

The Portland State University Chapter of the American Association of University Professors
(Association) represents academic professionals employed by Portland State University (PSU). The

                                                   7
Association and PSU entered into a collective bargaining agreement that established a grievance process
for dispute resolution. One provision of the grievance process, Article 28.B.2, allowed PSU to decline
to use that process if a member of the Association sought resolution of the grievance through an
administrative agency or in a court. Here, a member alleged gender discrimination in complaints filed
with the Equal Employment Opportunity Commission and the Bureau of Labor and Industries.
Thereafter, PSU declined to use the grievance process. The Association filed an unlawful practice
complaint with the Employment Relations Board (board), alleging that PSU's refusal to enter into the
grievance process constituted unlawful retaliation under state and federal law. The board agreed with
the Association and ordered PSU to submit to the grievance process. PSU seeks judicial review arguing
that the board did not have authority to determine that Article 28.B.2 constituted retaliation and the
board incorrectly concluded that Article 28.B.2 constituted retaliation. Held: The board has authority to
determine whether Article 28.B.2 is an enforceable contractual provision. However, because the board
applied an incorrect standard in determining whether Article 28.B.2 is enforceable, the Court of Appeals
reversed and remanded to the board to apply the correct standard in making that determination.
Reversed and remanded for reconsideration; otherwise affirmed.

Jeld-Wen, Inc. v. Pacificorp
(Wollheim, J.)

 Defendant PacifiCorp appeals a trial court order denying its motion to compel arbitration of plaintiff
Jeld-Wen's claims against PacifiCorp for damages. Pacificorp's and Jeld-Wen's predecessors in interest
entered into a stipulation in 1920, which included an agreement to arbitrate any claims for damages.
Held: Because Oregon's arbitration act unambiguously applies to arbitration agreements "whenever
made," the act applies to the 1920 stipulation and the arbitration agreement is enforceable. Reversed
and remanded with instructions to grant PacifiCorp's motion to compel arbitration

State ex rel Juvenile Department of Deschutes County v. N. L. D.
(Wollheim, J.)

Youth appeals the juvenile court's judgment ordering him to pay $853.59 in restitution to the
Department of Justice, Criminal Injuries Compensation Account (account). Youth asserts that the court
erred in imposing restitution because the account is not a "victim" within the meaning of ORS
419C.450. Youth also contends that the Juvenile Code does not provide restitution to be ordered to the
account because ORS chapter 147, which describes the procedure for paying restitution to the account,
is not among the statutes that are incorporated into the Juvenile Code under ORS 419C.270. Youth
asserts that the juvenile court committed plain error by ordering him to pay restitution to the account.
Held: Consistent with State v. E. V., ___ Or App ___, ___, ___ P3d ___ (Dec 29, 2010) (slip op at
3-4), the account is a "victim" for purposes of restitution in a juvenile delinquency case under ORS
419C.450. Youth did not preserve his argument that ORS chapter 147 is not incorporated into the
Juvenile Code. Youth failed to raise his plain error argument until his reply brief, and the alleged error
is not "plain." Affirmed.

Linda Griffin v. Allis-Chalmers Corporation Product Liability Trust
(Schuman, P. J.)

Plaintiff brought a products liability and negligence action against 52 defendants, claiming that, as
suppliers or producers of raw asbestos or asbestos-containing products to which he was exposed,

                                                   8
defendants were responsible for his development of mesothelioma. This appeal involves one of those
defendants, Union Carbide Corporation. Plaintiff alleged that Union Carbide supplied raw asbestos to
U.S. Gypsum (USG) at the Southgate manufacturing plant, and that plaintiff, a truck driver, was
exposed to the asbestos when he was at the facility to load finished products. Plaintiff's theory was that
the raw asbestos fibers were released into the air during the manufacturing process and that he inhaled
enough of them to cause his disease. Union Carbide moved for summary judgment on the ground that
plaintiff did not present evidence from which a reasonable juror could infer that asbestos fibers supplied
by Union Carbide were present in the USG facility when plaintiff was there. The trial court granted
Union Carbide's motion. Plaintiff appealed. Held: It is undisputed that, for at least two of the years
that plaintiff regularly visited Southgate, USG received large quantities of raw asbestos from Union
Carbide. It is also undisputed that plaintiff spent time inside the facility, that there was no physical
separation between where he was located and the manufacturing area, and that plaintiff used an air hose
to clean dust and debris from the loaded products. Those facts coupled with expert testimony promised
in plaintiff's ORCP 47 E affidavit create a triable issue of fact. Reversed and remanded.

Industrial Customers of Northwest Utilities v. Public Utility Commission of Oregon
(Schuman, P. J.)

Under Oregon law, a public utility is allowed to build into its rates the amount that the utility expects to
pay in income taxes. Pursuant to statute, a public utility must annually file a tax report with the Oregon
Public Utility Commission (PUC), which the commission then reviews to determine the difference
between the amount of taxes assumed for ratemaking purposes and taxes ultimately paid either by the
utility or by the utility's affiliated corporate group that are "properly attributed to the regulated
operations of the utility." ORS 757.268(4). If the difference is large enough, an automatic adjustment
to the rate schedule is triggered. This case involves an automatic adjustment that resulted from the
PUC's review of the 2006 tax report filed by PacifiCorp. Because PacifiCorp filed its 2006 tax returns
as part of an affiliated corporate group, the PUC was required to determine what share of the taxes paid
by that group were properly attributed to PacifiCorp's Oregon-regulated activities. In doing so, the
PUC applied its own administrative rule, OAR 860-022-0041. On judicial review, Industrial Customers
of Northwest Utilities (ICNU) challenges various aspects of the PUC's review of PacifiCorp's 2006 tax
report. First, ICNU perceives an inconsistency between the authorizing statute, ORS 757.268, and the
methodology set out in OAR 860-022-0041 for determining whether taxes paid are properly attributed
to the regulated operations of a utility. Second, ICNU contends that the PUC abused its discretion in
refusing to amend a protective order that, according to ICNU, unduly restricted its access to
PacifiCorp's documents and made it impossible for ICNU to effectively participate in the PUC
proceedings. Third, ICNU contends that the PUC acted inconsistently with the commission's own rules
and delegated authority by striking the testimony of ICNU's expert. Held: The administrative rule does
not exceed the PUC's statutory authority. Furthermore, in refusing to amend the protective order in this
case, the PUC did not act outside the range of its delegated authority or fail to ground its decision in
substantial evidence. Because the PUC considered a portion of the testimony of ICNU's expert, we
decline to consider the assignment of error as to that testimony. As to the remainder of the expert
testimony, we reject ICNU's contention that the PUC erred in excluding that testimony. Affirmed.




                                                   9
State of Oregon v. Maximilliano Alvarez
(Schuman, P. J.)

Defendant appeals from a judgment of conviction stemming from an apparently gang-related assault in
which he used a metal baseball bat to beat a 16-year-old victim, and an accomplice used a metal rod. A
jury returned guilty verdicts on counts of assault in the first degree, assault in the second degree, and
three counts of unlawful use of a weapon. Two charges alleged that defendant himself beat the victim
with the bat. Two other charges alleged that defendant aided and abetted his accomplice in beating the
victim with a metal rod. On appeal, defendant advances three assignments of error. First, he argues that
the court erred in denying his motion for a judgment of acquittal on the count of first-degree assault
because the state did not present sufficient evidence that the assault created "a substantial risk of death."
Second, he argues that the two metal bat convictions should have merged because the offenses were
part of a single criminal episode and all of the elements of the unlawful use conviction were subsumed in
the first-degree assault conviction. Third, he argues that, for the same reasons, the two metal rod
convictions should have merged. Held: First, the evidence at trial was sufficient for a juror relying on
common experience to find that the injury actually inflicted created a substantial risk of death. Second,
defendant's merger arguments fail because in both sets of convictions, each of the statutory provisions,
as charged, requires proof of an element that the other does not. Affirmed.

State of Oregon v. Theodore Wayne Hiner, Sr.
(Ortega, J.)

Defendant appeals two consolidated convictions for possession of cocaine, ORS 475.884, and violation
of his probation for a previous possession of cocaine. He assigns error to the trial court's denial of his
motion to suppress evidence that challenged the legality of an underlying stop. At the time of the stop,
the officer was aware that defendant was on probation for cocaine possession and reasonably suspected
that defendant had consumed alcohol in violation of his probation conditions, even though subsequent
information showed that defendant did not have a condition that prohibited alcohol consumption. The
officer provided defendant an opportunity to refuse to consent to a search and informed defendant that
such a refusal could subject him to arrest for a probation violation. Held: The authority to arrest a
probationer for violation of a probation condition implies the authority to stop persons reasonably
suspected of violating that probation condition. Defendant had an opportunity to refuse to consent to a
search; therefore, his consent was valid. Affirmed.

Brian J. Stacy v. Employment Department
(Ortega, J.)

Claimant seeks judicial review of an Employment Appeals Board (the board) decision denying
unemployment insurance benefits. He contends that the board erred in determining that he did not have
good cause to voluntarily leave work. Claimant argues that he had good cause to quit because he was
subjected to discrimination and harassment based on his status as a Native American, and the board's
findings to the contrary are not supported by substantial evidence in the record. Held: Although the
board's finding and conclusion that claimant was not subjected to racial slurs in the workplace is not
supported by substantial evidence, the board's alternative finding and conclusion that claimant had a
reasonable alternative to leaving work is supported by substantial evidence. Affirmed.



                                                  10
Department of Human Services v. S. T.
(Ortega, J.)

Mother appeals a permanency judgment in which the juvenile court approved a plan of adoption. Held:
The juvenile court did not err by approving a permanency plan of adoption, finding that an open
adoption was in child's best interests, and deciding that, if an open adoption became impossible, it would
hold another permanency hearing. Affirmed.

Joe Petroff v. John E. Williams
(Rosenblum, J.)

Respondents appeal after the trial court granted petitioner a way of necessity across their property.
Respondents argue that petitioner's property is not truly landlocked and that, if it is, petitioner is barred
by ORS 376.180(12) from obtaining a way of necessity, because he created his own lack of access by
causing a corporation, which petitioner wholly owns, to sell the property to him without an easement for
access. They also argue that the way of necessity granted by the trial court is not practicable, because it
cannot be kept passable without grading work that is presently prohibited by a restrictive covenant.
Held: Petitioner's property is landlocked. ORS 376.180(12) prohibits establishing a way of necessity
when a landlocked parcel was created by the sale of other land owned by the landowner. Petitioner's
property became landlocked when that property itself was sold, so the statute does not preclude
establishing a way of necessity. However, the point of connection to the way of necessity established by
the trial court is not practicable. The way of necessity cannot be maintained sufficiently to allow motor
vehicle access consistent with the intended uses of petitioner's property. Reversed.

State of Oregon v. Jonathan R. Olinger
(Rosenblum, J.)

Defendant appeals his convictions of unlawful manufacture of marijuana, ORS 475.856; unlawful
delivery of marijuana, ORS 475.860(2); and unlawful possession of marijuana, ORS 475.864; assigning
error to the denial of his pretrial motion to suppress evidence. Defendant argues that a sheriff's deputy
illegally trespassed on the curtilage of his home to make observations that were later used by the deputy
and his partner to obtain defendant's consent to a search of his house, which yielded the evidence of the
crimes. Held: The deputy's entry into the "offshoot" of defendant's driveway was a trespass: the
presumption of implied consent normally afforded to visitors did not extend to that portion of
defendant's curtilage, nor did other circumstances so strongly evince an invitation to the public that entry
was otherwise implicitly invited. Therefore, the deputy conducted an unlawful search. Because the trial
court did not rule or make any findings regarding (1) whether defendant established the "minimal factual
nexus" between the evidence sought to be suppressed and the unlawful search or (2) whether the state
proved attenuation, the Court of Appeals vacated the judgment and remanded for the trial court to
resolve those issues in the first instance. Vacated and remanded.

Department of Consumer and Business Services v. Michael J. Clements
(Rosenblum, J.)

The Department of Consumer and Business Services (DCBS) seeks judicial review of an administrative
law judge's (ALJ) final order. DCBS assigns error to the ALJ's conclusion that claimant was a "subject
worker" of Lorelei Transportation and was thus entitled to workers' compensation, arguing, first, that

                                                   11
the ALJ erred in concluding that claimant was a "worker" within the meaning of ORS 656.005(30).
That argument is twofold. DCBS contends that the ALJ (1) failed to consider the primary part of the
legal test ("services for remuneration") and (2) misapplied the second part ("subject to the direction and
control of an employer"). DCBS also argues that the ALJ misapplied the "casual worker exception" in
ORS 656.027(3). Held: The ALJ properly determined--although implicitly--that there was an
agreement that claimant would furnish services for remuneration, and that determination was supported
by substantial evidence. Further, claimant was "subject to the direction and control of an employer"
under the "right to control" test, and was thus a "worker" under ORS 656.005(30). However, in
applying the "casual worker exception" in ORS 656.027(3), the ALJ erroneously concluded that Lorelei
Transportation was a "subject" employer. Because Lorelei Transportation did not have any subject
employees at the time of claimant's injury, it was a "nonsubject" employer, and, on remand, the ALJ
must reach the question of whether claimant's work was "casual" within the meaning of ORS 656.027(3)
to determine whether the "casual worker exception" applies. Reversed and remanded.

Jim Pliska v. Umatilla County
(Rosenblum, J.)

Petitioners seek review of a decision of the Land Use Board of Appeals (LUBA) that affirmed Umatilla
County's approval of a conditional use permit for the construction of a travel plaza on property owned
by respondent Flying J, Inc. Petitioners contend that LUBA made errors of law in determining that the
issue raised on appeal--that petitioners had an unqualified right to a continuance pursuant to the county's
development code--was not first properly raised before the county. LUBA specifically determined that
petitioners' letter requesting a continuance pursuant to ORS 197.763(6), submitted to the county prior
to the public hearing in this case, was not sufficient to raise the issue of a continuance pursuant to
section 152.772(F)(12) of the Umatilla County Development Code. Held: LUBA did not err in
concluding that petitioners failed to adequately raise the issue on appeal before the local government.
Petitioners' request for a continuance at the outset of the hearing pursuant to ORS 197.763(6) did not
give fair notice that petitioners intended to assert a right to a continuance pursuant to the county's code.
The statute and the code involve two different rights, and raising one did not raise the other. Affirmed.

Larry D. LeVasseur v. Lowell Armon
(Sercombe, P. J.)

Plaintiffs, owners of a residential lot in a planned community, brought suit against another lot owner (the
Armons), the homeowners' association for the planned community, and the association's board of
directors. Plaintiffs alleged that the Armons were violating several provisions of the covenants,
conditions, and restrictions (CCRs) of record for the lots. Plaintiffs sought a writ of mandamus and,
alternatively, a mandatory injunction to compel the association to enforce the CCRs against the Armons.
Plaintiffs also alleged a claim for injunctive relief against the Armons and a claim for intentional infliction
of severe emotional distress (IIED) against Lowell Armon. The trial court ultimately dismissed the
claims against the association and its board of directors in limited judgments and awarded those parties
attorney fees in supplemental judgments. Subsequently, the trial court also dismissed the claim for
injunctive relief against the Armons, struck the IIED claim, and entered a general judgment in favor of
the Armons, including an award of attorney fees. Plaintiffs appeal each of those judgments. Held:
Plaintiffs' petition for mandamus did not identify any legal duty requiring the association to enforce the
CCRs, and therefore the writ of mandamus was properly dismissed under ORS 34.110. Similarly,
because the complaint did not allege any enforcement obligation on the part of the association, the trial

                                                   12
court did not err in dismissing the claim for a mandatory injunction. However, the claim for injunctive
relief against the Armons was well pleaded: the complaint alleged that defendant failed to comply with
the CCRs, that the breach would cause future harm, and that monetary damages were an inadequate
remedy. Thus, the trial court erred in dismissing that claim. As to the IIED claim, although the parties
have assumed that the trial court dismissed the claim for failure to state ultimate facts sufficient to
constitute a claim, the court in fact struck plaintiffs' claim for failure to amend the complaint after it had
granted the Armons' motion to make more definite and certain under ORCP 21 D. Because the trial
court dismissed the IIED claim on grounds that plaintiffs have not assigned as error, the Court of
Appeals does not review the court's ruling on that claim. Lastly, a supplemental judgment awarding
attorney fees is not valid where it is based on a limited judgment but entered before entry of a general
judgment. ORS 18.005(17). Thus, the supplemental judgments awarding attorney fees to the
association and its board must be vacated and that portion of the appeal dismissed. In light of the
disposition of the other claims, the award of attorney fees to the Armons is reversed. Supplemental
judgments vacated; appeal of supplemental judgments dismissed; otherwise affirmed in part, reversed in
part, and remanded for further proceedings.

Larry L. Luethe v. Multnomah County
(Sercombe, J.)

Plaintiffs, who filed suit seeking compensation under Measure 37, appeal a judgment that dismissed that
suit on mootness grounds precipitated by the enactment of Measure 49. Plaintiffs argue that (1) under
the reasoning in Fisk v. Leith, 137 Or 459, 299 P 1013, on reh'g, 3 P2d 535 (1931), they have a "vested
right" in their "cause of action for compensation" under Measure 37 and, if Measure 49 operates
retroactively to abolish that right, then application of Measure 49 to their suit violates the Fifth and
Fourteenth Amendments to the United States Constitution; and (2) the trial court had discretion to enter
judgment nunc pro tunc in their favor on their Measure 37 claims, and their situation warranted such a
ruling. Held: To the extent that Fisk remains good law, despite its use of a "vested rights" analysis, it is
inapposite and fails to aid plaintiffs' constitutional arguments on appeal, because the statute repealed in
Fisk, unlike Measure 49, in no way repealed the plaintiff's cause of action or requested remedy. The
retroactive application of Measure 49 to plaintiffs' claims did not violate either modern principles of
substantive due process or the Takings Clause of the Fifth Amendment. Further, the trial court did not
err in failing to enter judgment nunc pro tunc based on its earlier oral ruling, because plaintiffs' Measure
37 claims were superseded by Measure 49 and were no longer justiciable. Affirmed.

A. L. Bruner v. Josephine County
(Sercombe, J.)

Plaintiffs appeal a judgment that dismissed their Measure 37 claims, which were based on the county's
failure to give effect to its Measure 37 waiver of land use restrictions on plaintiffs' property following
the enactment of Measure 49. Plaintiffs argue on appeal that their complaint adequately pleads claims
for breach of contract, unconstitutional impairment of the obligation of contracts under Article I, section
10, of the United States Constitution, impairment of judicial functioning under Article III, section 1, of
the Oregon Constitution, and the unconstitutional taking of property without just compensation under
the Fifth Amendment to the United States Constitution. Held: The trial court did not err in dismissing
plaintiffs' claims for breach of contract, impairment of contract, and interference with judicial
functioning in light of Smejkal v. State of Oregon, ___ Or App ___, ___, ___ P3d ___ (Dec 15, 2010)
(slip op at 9-11) (holding that the granting of a Measure 37 waiver did not create a contractual

                                                    13
obligation of the issuing governmental entity that could be breached or impaired and that the repeal of
an issued Measure 37 waiver by operation of Measure 49 did not unduly burden judicial functioning
under Article III, section 1). The trial court did not err in dismissing plaintiffs' regulatory takings claim
because, given the uses allowed by the applicable zoning and Measure 49, plaintiffs could not
successfully plead that they had been deprived of all economically viable uses of their property sufficient
to create a per se taking under the Fifth Amendment. Affirmed.

Waste Not Of Yamhill County v. Yamhill County
(Sercombe, J.)

Yamhill County and Riverbend Landfill Company seek review of a Land Use Board of Appeals (LUBA)
decision reversing county approval of comprehensive plan and zoning changes. The county's land use
decision allowed for a landfill expansion via an "exception" to a statewide planning goal. LUBA
determined that the proposed landfill use was consistent with the statewide planning goal and that the
exception was therefore inappropriate. The only obstacle to the proposed use, LUBA concluded, was a
local ordinance to which an exception could not be taken. On review, the county and landfill operator
contend that the exception was necessary in order to approve the plan and zone changes for the
expansion land. Specifically, they argue: (1) that an exception can be taken to avoid a use preclusion
that is imposed by local law; (2) that regulations incorporated into the goal at issue allow such a landfill
expansion only when zoned a particular way, which is not the case here, and therefore an exception is
necessary; and (3) changes to the exceptions statute allow exceptions like the one at issue here. Held:
An "exception" avoids the imposition of goal requirements that otherwise apply to the adoption or
amendment of a comprehensive plan; a zoning ordinance is not a "goal requirement." If the county
wishes to change the local ordinance, it can amend its comprehensive plan if the amendment meets
applicable goal requirements; the county needs no separate exception to the old zoning law itself.
LUBA did not err in so concluding. The county's remaining contentions differ significantly from the
arguments made to LUBA. Because the preservation requirement is particularly acute in land use
review proceedings, those contentions were not preserved, and the Court of Appeals declines to address
them. Affirmed.

State of Oregon v. E. V.
(Duncan, J.)

Youth appeals from a supplemental judgment ordering him to pay restitution to an insurance carrier and
the Criminal Injuries Compensation Account (the account). Youth argues that, although insurance
carriers and the account are "victims" for the purpose of restitution in criminal cases, they are not
"victims" for the purpose of restitution in juvenile delinquency cases. Held: The Juvenile Code
expressly incorporates the Criminal Code's definition of "restitution," which, in turn, includes a special
definition of "victim." That definition of victim, ORS 137.103(4), includes the account and insurance
carriers, and it applies in this case. Accordingly, the trial court did not err in awarding restitution to the
insurance carrier and the account in this case. Affirmed.

State of Oregon v. Daniel Ray Gale
(Edmonds, S. J.)

Defendant appeals from his convictions for a variety of drug-related offenses, arguing that the trial court
abused its discretion when it denied his motion for a continuance. Defendant had moved for a

                                                    14
continuance because his attorney had withdrawn from representing him. Defendant explained that he
had been unaware that his attorney had withdrawn until the Friday before his trial date. The trial court
denied defendant's motion on the grounds that granting a continuance would prejudice the state because
the trial had already been reset three times, and there was a risk of "witness fatigue." Held: The trial
court abused its discretion when it denied defendant's motion for a continuance. There was insufficient
evidence in the record, other than the state's assertion that "witness fatigue" might occur if a
continuance was granted, to demonstrate that the state's ability to conclude the case in a timely manner
would have been affected by the grant of a continuance. Reversed and remanded.

                                         [End of Document]




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