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| May 12, 2004
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| May 12, 2004
The Court of Appeals issued these opinions:
Weatherspoon v. Allstate Insurance Company (Multnomah)
State v. Oakes (Coos)
State v Curtiss (Washington)
Walter v. Scherzinger (ERB)
Walter v. Scherzinger (Multnomah)
Johnson v. Brown (Deschutes)
Nielsen v. Myers (Klamath)
Iron Horse Engineering Co., Inc. v. Northwest Rubber Extruders, Inc. (Multnomah)
Grimmett v. Brooks (Multnomah)
Babcock v. Sherwood School District 88J (Washington)
Honstein v. Metro West Ambulance Service, Inc. (Multnomah)
State v. Adams (Washington)
Burden v. Copco Refrigeration, Inc. (Multnomah)
The Court of Appeals issued these per curiam opinions:
Lopus v. Glover (Lane)
Johnson v. Morgan (Deschutes)
The Court of Appeals affirmed these cases without opinion:
Jost v. Department of Human Services (DHS)
Ponder v. Hill (Umatilla)
State v. Cantrell (Multnomah)
State v. McLavey (Marion)
Costello v. Unity, Inc. (WCB)
Salas v. SAIF Corporation (WCB)
Capitol Insurance Center, Inc. v. Forster (Marion)
Wong v. Lampert (Malheur)
State v. Ayer (Linn)
State v. Davilla (Clackamas)
McVay-King and King (Curry)
Cascade Steel Rolling Mills v. Volz (WCB)
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Benita Weatherspoon, Respondent, v. Allstate Insurance Company, an Illinois corporation, Appellant. Edmonds, P. J.
Defendant appeals a judgment awarding attorney fees to plaintiff under ORS 742.061. Defendant argues that the court lacked jurisdiction to award the fees and, alternatively, that the trial court erred in awarding fees under ORS 742.061(1). Defendant's jurisdictional argument is based on plaintiff's failure to file a copy of plaintiff's fee petition with the trial court as required by ORCP 68 C(4)(a)(i). Defendant argues that, even if the trial court had jurisdiction to award attorney fees, it erred by awarding fees because defendant complied with ORS 742.061(3). Held: A party's failure to comply with ORCP 68 C(4)(a)(i) does not affect a trial court's jurisdiction. A "proof of loss" for an underinsured motorist (UIM) claim must include the full particulars of the nature and extent of the insured's injuries, treatment, and other material details so as to permit an insurer to estimate its obligations under the UIM coverage in its policy and must inform an insurer that an insured party is making a UIM claim. Reversed.
State of Oregon, Appellant, v. Troy Alan Oakes, Respondent. Edmonds, P. J.
Defendant was charged with attempting to elude a police officer after having run from a tribal police officer with deputy sheriff status who failed to identify himself in any capacity other than as a tribal police officer. The state appeals the trial court's order granting defendant's pretrial motion to suppress evidence obtained as a result of an allegedly unlawful traffic stop. Held: While the tribal officer was not "in uniform" and did not "conspicuously display an official identification card showing the officer's lawful authority" as deputy sheriff pursuant to ORS 810.400, the resulting traffic stop was not unlawful such that suppression of evidence obtained as a result of an alleged violation of ORS 810.400 is required. Reversed and remanded.
State of Oregon, Respondent, v. Daniel Gene Curtiss, Appellant. Edmonds, P. J.
Defendant appeals his conviction for manslaughter in the second degree. ORS 163.125(1)(a). Defendant drove through a construction zone and struck a construction worker, which resulted in the worker's death. Defendant sought to introduce expert testimony regarding the standards for use and placement of construction signs and markers in a construction zone and whether signs and markers at the accident scene complied with those standards. He assigned as error the trial court's exclusion of the testimony. Held: The expert testimony was not relevant and was properly excluded at trial because defendant testified that he was aware that construction was in progress and because the expert testimony would not establish anything about defendant's own perception or awareness at the time of the incident pursuant to the statutory requirement that defendant must have acted recklessly. ORS 163.125; ORS 161.085(9). Affirmed.
D. Grant Walter and Service Employees International Union Local 140, Petitioners, v. James Scherzinger and Portland School District No. 1J, Respondents. (A118491) Haselton, P. J.
Petitioners requested a declaratory ruling from the Employment Relations Board (ERB) to determine whether respondents' proposal to contract out custodial services in the Portland Public School District (PPS) violated the Custodians' Civil Service Law (CCSL) and was, therefore, a prohibited subject of bargaining under the Public Employee Collective Bargaining Act. Petitioners argued that (1) the CCSL provides a comprehensive, fully integrated merit-based system for appointment and promotion of custodians and assistant custodians in PPS; (2) PPS's contracting proposal would, effectively, render the CCSL a "dead letter"; and (3) by enacting such a comprehensive statutory scheme, the legislature necessarily precluded such a wholesale circumvention of the CCSL. Noting that the CCSL does not prohibit contracting out custodial services, ERB agreed with respondents and held that the CCSL applies only to custodians and assistant custodians who are PPS employees. Petitioners seek judicial review of that declaratory ruling. Held: Statutory context shows that, at the time the CCSL was enacted in 1937, all persons providing custodial services were "employees" and that the legislature did not contemplate PPS contracting out those services. Although that context may reflect a legislative assumption that custodians would be district employees, that does not equate with a requirement that persons performing custodial services must be hired as employees. Further, whether the contracting proposal would render the CCSL a "dead letter" is of no consequence. First, the CCSL's expressed statutory exceptions permit similar consequences. Second, the existence of a regulatory scheme does not, by itself, mandate the continuation of the regulated activity. Nothing in the CCSL's text or context requires PPS to hire persons providing custodial services as employees, or limits PPS's ability to procure those services through contracts comporting with public contracting laws. Affirmed.
D. Grant Walter and Service Employees International Union Local 140, Appellants, v. James Scherzinger and Portland School District No. 1J, Respondents. (A118490) Haselton, P. J.
Plaintiffs appeal from a circuit court judgment dismissing their complaint for lack of jurisdiction. Plaintiffs contended that a proposal to contract out custodial services in the Portland Public School District violated the Custodians' Civil Service Law (CCSL) and, consequently, was a prohibited subject of bargaining under the Public Employee Collective Bargaining Act. While this action was pending, plaintiffs filed a substantively identical petition with the Employment Relations Board (ERB). The trial court determined that ERB had exclusive jurisdiction and dismissed the complaint; the court also issued a "provisional ruling" on the merits, concluding that the contracting proposal would not violate the CCSL. Held: The appeal is dismissed because, given the Court of Appeals' affirmance of the companion judicial review of ERB's order, Walter v. Scherzinger (A118491), __ Or App __, __ P3d __ (May 12, 2004), the merits of the parties' dispute are fully adjudicated and any opinion addressing the correctness of the trial court's jurisdictional ruling would have "no practical effect" on the rights of the parties. Appeal dismissed.
Tom Johnson, Appellant, v. Nancy Brown and Deschutes County, Respondents. Linder, J.
Plaintiff, a former supervisor of an adult criminal corrections program in Deschutes County (county), was fired for work-related misconduct. The firing followed an investigation in which Brown, one of plaintiff's subordinates, made several allegedly defamatory statements to an investigator hired by the county. Plaintiff then brought this action against Brown and the county (defendants) for defamation. Defendants asserted, among other defenses, that Brown's statements were absolutely privileged. The trial court granted summary judgment for defendants after concluding that Brown's statements were absolutely privileged. Held: Absolute privilege attaches to statements made by public officials in the course of performing their official duties. Brown, as a county employee, is a public official, and made the allegedly defamatory statements during an investigative interview that her employer required her to attend. Accordingly, her statements are protected by absolute privilege and plaintiff's defamation claim is barred. Affirmed.
Dan Nielsen, Ray Sweat, and Shara Sweat, Appellants, and Quincy Newman and Darrel Micka, deceased, Plaintiffs, v. Hardy Myers, Thomas K. Elden, and Steve Sandercock, Defendants, and State of Oregon, Respondent. Linder, J.
Plaintiffs brought a declaratory judgment action against the state seeking a declaration that their involvement with the "Northwest Family Reunion," a cash-for-cash "gifting club," was legal under the Oregon Unlawful Trade Practices Act (UTPA). See ORS 646.608(1)(r). On cross-motions for summary judgment, the trial court concluded that the gifting club was an unlawful "pyramid club" under the UTPA, ORS 646.609, and entered a declaration accordingly. The trial court also assessed a $25,000 penalty against one plaintiff for willfully violating the UTPA. See ORS 646.642(1). Plaintiffs appeal, asserting that the trial court erroneously concluded that the gifting club is a "pyramid club" prohibited by the UTPA. Held: The trial court correctly granted summary judgment for the state and declared the gifting club activities to be unlawful under the UTPA. Affirmed.
Iron Horse Engineering Co., Inc., a Florida corporation, Respondent, v. Northwest Rubber Extruders, Inc., Appellant. Northwest Rubber Extruders, Inc., an Oregon corporation, Counterclaim Plaintiff, v. Iron Horse Engineering Co., Inc., a Florida corporation, Counterclaim Defendant. Wollheim, J., majority; Barron, J. pro tempore, concurring.
Appellant Northwest Rubber Extruders, Inc. (Northwest) is a rubber and plastic company that manufactures rail boot through a process called "extrusion." Respondent Iron Horse Engineering Co., Inc. (Iron Horse) develops designs for rail boot. Iron Horse and Northwest agreed to work together to provide rail boot for a project, but negotiations failed and this contract action ensued, with each party making claims against the other. Northwest argues that the trial court erred when it (1) denied Northwest's motions for a directed verdict, judgment notwithstanding the verdict (JNOV), and a new trial regarding Iron Horse's breach of contract claim; (2) gave a legally incorrect response to a written question that the jury asked during deliberations without first notifying counsel; (3) denied Northwest's motions for judgment on the pleadings, a directed verdict, JNOV, and a new trial regarding Iron Horse's claim for breach of the covenant of good faith and fair dealing; and (4) denied Northwest's request for attorney fees regarding Iron Horse's claim for misappropriation of trade secrets. Held: (1) The denials of Northwest's motions for JNOV and a new trial made on the ground of insufficiency of the evidence are not reviewable. Furthermore, Northwest did not perfect its motion for JNOV because it did not renew its motion for a directed verdict at the close of all the evidence. The trial court did not err when it denied Northwest's motion for a directed verdict. Under Monson v. State of Oregon, 136 Or App 225, 231, 901 P2d 904 (1995), "A directed verdict is appropriate when there is a complete absence of proof on an essential issue, or when there is no conflict in the evidence and it is susceptible of only one construction." Therefore, reversal is required only if there is no evidence from which the jury could have found that Northwest breached the contract. In this case, viewing the evidence in the light most favorable to Iron Horse, the jury could have found that Northwest breached the contract. (2) Despite the fact that the trial court did not notify counsel before answering the jury's question, any error is harmless because the instruction was proper. (3) The trial court did not err in denying Northwest's motions directed against Iron Horse's claim for breach of the duty of good faith and fair dealing. It was not error for the trial court to deny Northwest's motion for judgment on the pleadings because Iron Horse's complaint stated a claim for breach of the duty of good faith and fair dealing. Additionally, Northwest's motions for JNOV and a new trial on Iron Horse's claim for breach of the duty of good faith and fair dealing are not preserved. As in Northwest's first assignment of error, Northwest did not perfect its motion for JNOV because it did not renew its motion for a directed verdict at the close of all the evidence. (4) In its notice of appeal, Northwest indicated that it appealed, in part, from an order dismissing its petition for attorney fees. The appeal is therefore dismissed to the extent that it was taken from the order because the post-judgment determination of entitlement to attorney fees memorialized in an order is not appealable. Appeal from amended opinion and order concerning attorney fees dismissed; otherwise affirmed.
In the Matter of the Conservatorship of Sadie A. Grimmett. Sadie A. Grimmett, Appellant, v. Cynthia Brooks, Respondent. Wollheim, J.
Appellant appeals an order of the probate court appointing respondent as conservator. Appellant argues that (1) the probate court erred when it denied her motion to dismiss for failure to state a claim or cause of action; (2) respondent failed to prove that appellant was financially incapable by clear and convincing evidence; and (3) the probate court abused its discretion when it failed to take appellant's wishes into account when it appointed a conservator. Held: (1) Respondent originally petitioned the court for guardianship and then amended her petition to include a request for conservator. When examined together, the original petition for guardianship and the amended petition for conservatorship satisfy the statutory requirements of ORS 125.055(2) and (4). (2) There was clear and convincing evidence before the probate court that appellant cannot take actions "necessary to obtain, administer and dispose of all real and personal property, intangible property, business property, benefits and income" under ORS 125.005(3). Therefore, the trial court did not err when it held that there is clear and convincing evidence that appellant is financially incapable and has money or property that requires management or protection under ORS 125.400. (3) ORS 125.200 provides only that the court may appoint the most suitable person as a fiduciary after giving consideration to the wishes of the respondent. There is no evidence that the probate court did not consider appellant's wishes. Appellant argues that there was a conflict of interest because respondent accepted an alleged gift of stock from appellant after respondent had obtained letters from two physicians stating that appellant was not capable of handling her own affairs. However, the transfer of stock from appellant to respondent was a gift, and appellant implicitly concedes that she was competent to make a gift. Therefore, there is no breach of a fiduciary relationship. Affirmed.
Robert E. Babcock and Gail R. O'Connell-Babcock, individually and as Guardians for Elizabeth E. Babcock and Robert L. Babcock, Appellants, v. Sherwood School District 88J; Rob Saxton, District Superintendent; Wayne Lowry; Peggy Stevens; Dave Backen; Mark Christie; and Judi Ebmeyer, District Board of Directors, Respondents. Schuman, J.
Plaintiffs sought a writ of review of defendants' decision to deny plaintiffs' request for an interdistrict transfer, which would have allowed their children to attend school in another district without paying tuition. Defendants moved for dismissal, arguing that the trial court did not have jurisdiction because, under ORS 34.040, a writ of review is available only to appeal a decision resulting from an "exercise of judicial or quasi-judicial functions." The trial court dismissed plaintiffs' petition. Plaintiffs appeal. Held: The Supreme Court has defined quasi-judicial functions as those operations of government that meet three criteria: They generally employ a process that is bound to result in a decision, the decision is bound to apply preexisting criteria to concrete facts, and the decision is directed at a closely circumscribed factual situation or a relatively small number of persons. That formulation was not intended to serve as a complete, all-purpose list of elements, all of which must be present in order to label an action quasi-adjudicative. Defendants did not engage in a quasi-judicial process, despite the fact that their decision applied only to two individuals. Defendants have no written rules or regulations pertaining to interdistrict transfer requests and were not bound to apply the general criteria plaintiff argues were applied. The proper vehicle for challenging defendants' alleged failure to provide plaintiffs with a quasi-adjudication cannot be a writ of review, the predicate to which is a quasi-adjudication. Affirmed.
David Honstein, Appellant, v. Metro West Ambulance Service, Inc., an Oregon corporation, Respondent. Schuman, J.
Plaintiff alleged that defendant, his employer, unlawfully fired him because of his disability and because he filed a claim for workers' compensation. The jury returned a verdict for the defense. Plaintiff assigns error to the trial court's refusal to instruct the jury that, in order to prevail, defendant had to prove that accommodating plaintiff would impose an undue hardship. Plaintiff also assigns error to the admission of testimony about the contents of a list of persons who had filed workers' compensation claims against defendant, arguing that the testimony was irrelevant, unfairly prejudicial, and improper evidence of action in conformity with a character trait. Held: Plaintiff's requested jury instruction conflated the concepts of reasonableness and undue hardship as they are defined in ORS 659A.118 and ORS 695A.121. The employee has the initial burden of proving the existence of a reasonable accommodation, and the employer's duty to prove undue hardship arises only if the employee makes that showing. Where an employer chooses, as the defendant did here, to base its case on the theory that plaintiff never met his initial burden of proving that a reasonable accommodation exists, then the employer does not need to raise undue hardship as a defense. Regarding plaintiff's other assignment of error, the testimony was logically relevant and the trial court had no discretion to exclude it on that ground; the trial court did not err to the extent that it ruled that the probative value of the testimony was not substantially outweighed by the danger of unfair prejudice; and evidence of defendant's other acts was admissible on the issue of punitive damages, a nonpropensity purpose. Affirmed.
State of Oregon, Appellant, v. Michael C. Adams, aka Michael Cory Adams, Respondent. Schuman, J.
Eight hundred sixteen days elapsed between the time defendant was charged with DUII and his trial on that charge. One hundred twenty of those days resulted from defendant's request for a set over. Six hundred ninety six days resulted from the state's request that the trial date be reset and from an unavailability of judges. The state appeals the trial court's grant of defendant's motion to dismiss based on the violation of his statutory right to a speedy trial. ORS 135.747. The state first argues that, because defendant did not expressly object to set-overs resulting from the unavailability of judges, he impliedly consented to that delay. The state also argues that the unavailability of judges was an extenuating circumstance that did not render the resulting delay unreasonable. Held: Where a defendant fails to object to a delay in bringing his case to trial, this does not constitute implied consent per se. The cases in which this court has found that a defendant has consented to a delay are cases in which an affirmative statement was made on the record, or where the defendant has impliedly consented through some affirmative action, i.e., fleeing the jurisdiction or appealing the disposition of a pretrial motion. Therefore defendant did not consent to delays based on the unavailability of judges. ORS 135.747 requires that the "period of time" between arraignment and trial be reasonable, not the cause of delay or its effect on defendant; the almost two year delay between defendant's being charged and his trial was unreasonable. Affirmed.
Rosemayne Burden, Respondent, v. Copco Refrigeration, Inc., Defendant, and Antoine Sabb, Appellant. Schuman, J.
Plaintiff sought reconsideration in this case. The Court of Appeals granted the petition for reconsideration and adhered to its previous opinion as clarified by this opinion. Plaintiff argued that, in determining whether her service of process was adequate, the previous opinion ignored the evidentiary weight of the presumption of adequate service that arises from ORCP 7. Held: In order to trigger the presumption of adequate service that arises from ORCP 7, service in accordance with one of the specific methods allowed in ORCP 7 must be shown by competent evidence. There can be no presumption of adequate service if there is not first competent evidence that service occurred in accordance with ORCP 7. In this case, plaintiff did not offer any competent evidence that service was accomplished in accordance with ORCP 7; therefore the presumption never arose. Reconsideration allowed; former opinion modified and adhered to as modified.
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