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| July 18, 2002
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| Cases decided July 18, 2002
[ The full text of these opinions can be found at http://www.publications.ojd.state.or.us ]
Dennis Kambury v. DaimlerChrysler Corp. et al., (CC 9812-083787) (CA A107705) (SC S48459)
On review from the Court of Appeals in an appeal from Multnomah County Circuit Court, Thomas M. Christ, Judge Pro Tempore. 173 Or App 372, 21 P3d 1089 (2001). The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings. Opinion of the Court by Justice Paul J. De Muniz.
The Oregon Supreme Court today held that the two-year product liability limitation period governs wrongful death claims that stem from defective products.
On December 6, 1995, Amy Kambury died when the airbag in her car deployed. Nearly three years later, on December 1, 1998, the personal representative of her estate ("plaintiff") filed an action alleging product liability, negligence, and breach-of-warranty claims. Arguing that the two-year statute of limitations for product liability claims barred all plaintiff's claims, defendants moved for summary judgment. The trial court granted that motion.
Plaintiff then filed an amended complaint alleging product liability, negligence, breach of warranty, negligent misrepresentation, and intentional misrepresentation. Maintaining that the amended complaint was a recharacterization of plaintiff's untimely product liability claims, defendants again moved for summary judgment, arguing that the two-year statute of limitations applied to each of those claims. The trial court again granted summary judgment. Plaintiff appealed.
On appeal, plaintiff argued that the trial court erred in granting defendants' motions for summary judgment. After a lengthy analysis, the Court of Appeals reversed the trial court judgment. The Court of Appeals held that the three-year wrongful death limitation period applied to plaintiff's product liability claim and remanded the matter for further proceedings. The Supreme Court allowed review to determine which limitation period applied to a product liability claim alleging that a defective product caused a person's death.
In a unanimous opinion authored by Justice Paul J. De Muniz, the Supreme Court reversed the decision of the Court of Appeals. The Court held that the product liability statute of limitations, which is the more specific statute, must control over the more general wrongful death statute of limitations. Accordingly, the Court concluded that the two-year product liability limitation period governs plaintiff's claim for death from a product defect. The Court remanded the case to the Court of Appeals for consideration of other arguments not related to the products liability claims.
In the Matter of the Application of James Jefferson Carter for Admission to the Bar of the State of Oregon, (SC S47312)
On review from a recommendation of the Oregon State Board of Bar Examiners. The applicant is denied admission to the practice of law in Oregon. Opinion of the Court Per Curiam.
Today, the Supreme Court denied the application of James Jefferson Carter for admission to the Oregon State Bar because Carter failed to demonstrate to the Court, by clear and convincing evidence, that he possesses the requisite good moral character and fitness to practice law.
During the fall of his first year of law school, in response to distress over some family problems, Carter broke into the offices of his former employer, In Focus, and stole $5,000 worth of computer equipment. Although Carter initially denied involvement in the crime, he later returned all the stolen equipment. The matter ultimately was resolved through a civil compromise. Carter went on the finish law school and to apply for admission to the Bar.
After a character review proceeding at which Carter represented himself and presented no witnesses or other evidence to demonstrate his present good moral character and fitness to practice law, the Board of Bar Examiners (BBX) recommended that Carter be denied admission to the Bar. Carter requested the Supreme Court to admit him notwithstanding the BBX's recommendation.
In a unanimous opinion, the Court concluded that Carter's conduct in committing the In Focus theft demonstrated that, at one time, he did not possess a good moral character. Moreover, the Court concluded that Carter had not carried his burden of proving, by clear and convincing evidence, that he had reformed his character at the time of the hearing. Accordingly, the Court denied Carter's application for admission to the Oregon State Bar.
In the Matter of the Application of Van Alexander Covington, IV, for Admission to the Bar of the State of Oregon, (SC S48651)
On review from a recommendation of the Oregon State Board of Bar Examiners. The applicant is denied admission to the practice of law in Oregon. Opinion of the Court Per Curiam.
Today, the Supreme Court denied the application of Van Alexander Covington, IV, for admission to the Oregon State Bar because Covington failed to demonstrate to the Court, by clear and convincing evidence, that he possesses the requisite good moral character and fitness to practice law.
Covington had a long history of drug and alcohol dependency, beginning at the age of 13. Despite intermittent periods of sobriety, which sometimes lasted as long as two years, Covington's drug and alcohol use, and the criminal activity that sometimes accompanied it, escalated until a point during Covington's second year of law school, when, as he put it, he hit bottom. Covington then began attending Alcoholics Anonymous meetings regularly and obtained a sponsor. He graduated from law school and completed a relapse prevention program, and then applied for membership in the Oregon State Bar.
After a character review proceeding, the Board of Bar Examiners (BBX) recommended that Covington be denied admission to the Bar. Covington requested the Supreme Court to admit him notwithstanding the BBX's recommendation.
In a unanimous opinion, the Court concluded that Covington had not carried his burden of proving, by clear and convincing evidence, that he possesses the requisite good moral character and fitness to practice law. The Court shared the concern expressed by a psychologist who had evaluated Covington that Covington had not gained adequate insight into to the psychological reasons underlying his drug and alcohol abuse problems. In addition, the Court held that the passage of time between Covington's last drug use and the closing of the evidentiary record in the proceeding was too short to overcome the Court's concerns about the possibility that Covington would relapse. Accordingly, the Court denied Covington's application for admission to the Oregon State Bar.
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On July 16, 2002, the Supreme Court:
1. Allowed petitions for review in*:
State v. Jim, S49366, A107059. Petitioner Lester Ray Jim (defendant), a member of an Indian tribe, seeks review of a Court of Appeals decision upholding the circuit court's determination that the State of Oregon has jurisdiction over an offense committed by an Indian on land held in trust by the federal government for a number of Indian tribes.
The Celilo Indian Village is located on land held in trust by the federal government for a number of Indian tribes, including the Warm Springs Tribe. A Wasco County deputy sheriff stopped defendant while he was driving down the main road of Celilo Indian Village, and subsequently arrested him for driving under the influence of intoxicants and driving with a suspended license. Defendant demurred to the charges, arguing that the state lacked criminal jurisdiction over offenses committed in the Village because: (1) Oregon does not have jurisdiction over offenses committed on reservation land, and (2) the Celilo Indian Village, by virtue of being on land held in trust by the federal government for the Warm Springs Tribe, is part of the Warm Springs Reservation. The trial court rejected defendant's demurrer.
On appeal, the Court of Appeals affirmed the trial court, rejecting defendant's claim that the Village is part of the Warm Springs Reservation. The court stated that the question was whether the Village was "located within the boundaries of a particular reservation, namely, the Warm Springs Reservation" and held that "Congress has defined the boundaries of the Warm Springs Reservation by statute, and Celilo Indian Village is not within those boundaries." Jim, 178 Or App at 559-560. The decision of the Court of Appeals is reported at 178 Or App 553, 37 P3d 241 (2002).
On review, the issue is whether Celilo Indian Village should be regarded as part of the Warm Springs Reservation, an area over which the State of Oregon lacks criminal jurisdiction, such that the state cannot assert jurisdiction over criminal offenses committed within the village by a member of an Indian tribe.
Brown v. Hill, S49373, A117097. Petitioner Claude W. Brown seeks review of a Court of Appeals decision dismissing as untimely his appeal from a trial court decision denying his petition for post-conviction relief.
According to the amended petition for post-conviction relief, petitioner was charged with a number of crimes, ultimately pleaded no contest to two crimes, and was sentenced to 70 months imprisonment. Subsequently, petitioner filed a petition for post-conviction relief. At the hearing on the petition, petitioner testified that he entered the plea because he under-stood that he would receive a 36-month sentence. The post- conviction court denied relief.
Petitioner informed his counsel that he wanted to appeal. Counsel for petitioner did not file the appeal until after the time period for an appeal had expired. The Court of Appeals dismissed the appeal as untimely filed.
Petitioner's petition for review of the Court of Appeals' dismissal of the appeal urges the Supreme Court to extend the reasoning of State ex rel Juv. Dept. v. Geist, 310 Or 176 (1990), to post-conviction proceedings. In Geist, the court stated that there is a statutory right to adequate counsel for indigent parents in cases involving the termination of parental rights, and determined that the right to adequate counsel "may prove illusory if there is no procedure for review of claims of inadequate counsel." Geist, 310 at 185. The court then provided a procedure for challenges to the adequacy of appointed counsel in termination of parental rights cases. Petitioner argues that filing a late appeal is inadequate assistance of counsel and, because a person seeking post-conviction relief has a statutory right to counsel, the appellate courts should allow the appeal to proceed as the remedy for the inadequate assistance of counsel.
On review, the issues are whether the reasoning in Geist applies to post-conviction relief cases and, if so, whether the appellate courts must allow an untimely appeal to proceed in such a case when the untimeliness is the result of an attorney error.
2. Allowed a petition for writ of mandamus in:
Johannesen v. Salem Hospital, S49323. Jason Johannesen (plaintiff below) brought an action for medical malpractice and wrongful death against Salem Hospital, David West, and Oregon Anesthesiology Group, P.C. (defendants below). Plain-tiff filed a motion to amend his pleading to seek punitive damages. The trial court denied plaintiff's motion.
Under ORS 18.535(3), a court is required to deny a motion to amend a pleading to seek punitive damages "if the court determines that the affidavits and supporting documentation submitted by the party seeking punitive damages fail to set forth specific facts supported by admissible evidence adequate to avoid the granting for a motion for a directed verdict to the party opposing the motion on the issue of punitive damages in the trial of the matter." The standard for the award of punitive damages is "clear and convincing evidence that the party against whom punitive damages are sought has acted with malice or has shown a reckless and outrageous indifference to a highly unreasonable risk of harm and has acted with a conscious indifference to the health, safety and welfare of others." ORS 18.537(1).
Plaintiff brought this original mandamus proceeding under ORS 34.250 and Article VII (Amended), section 2, of the Oregon Constitution, seeking to have this court issue a writ commanding the trial court to vacate its order denying plaintiff's motion to allow the pleading of punitive damages. The court allowed plaintiff's petition and issued an alternative writ of mandamus.
At issue is whether plaintiff satisfied ORS 18.535(3) and 18.537(1) and, therefore, is entitled to amend his complaint to seek punitive damages.
3. Denied petitions for review in:
Arlington Heights Homeowners Association v. City of Portland, S49401, A117067
Oland v. Morrow, S49407, A109719
State v. Bailey, S49408, A108416
State v. Jenson, S49418, A108320
State v. McBroom, S49437, A109543
State ex rel Burgess v. Barber, S49451, A116541
State v. Flowers, S49463, A108670
Deupree v. Department of Transportation, S49466, A106690
Mattingly v. Employment Department, S49469, A113731
Duncan v. Lampert, S49490, A112485
Bravo v. Hill, S49493, A110858
Le v. Palmateer, S49497, A105592
Murphy v. Morrow, S49506, A104241
Gomez v. Lampert, S49516, A115016
State v. McElroy, S49522, A111453
4. Denied a petition for writ of habeas corpus in:
Cunningham v. State, S49537
5. Reinstated the following attorneys to the active practice of law:
Michael W. Seidel
William J. Glasgow
*These summaries of cases in which the Supreme Court has allowed review are prepared for the benefit of members of the media to assist them in reporting the court's activities to the public. Parties and practitioners should not rely on the summaries, or the statement of issues to be decided in the summaries, as indicating the questions that the Supreme Court will consider on review. Regarding the questions that the Supreme Court may consider on review, see Oregon Rule of Appellate Procedure 9.20.
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