LANDAU, J. This case is before the court on certified questions of Oregon law from the United States Court of Appeals for the Ninth Circuit (Ninth Circuit). See generally ORS 28.200 to 28.255 (granting authority to answer certified questions and describing procedure). The questions arise out of an action for personal injury brought in federal district court against defendant Boyle and his employer, the City of Beaverton, for injuries that plaintiff suffered in an automobile collision with a...
DURHAM, J. Plaintiff, Bresee Homes, Inc. (Bresee), seeks review of a Court of Appeals decision that affirmed a trial court judgment in favor of defendant, Farmers Insurance Exchange (Farmers). Bresee Homes, Inc. v. Farmers Ins. Exchange, 227 Or.App. 587 , 206 P.3d 1091 (2009). The dispute concerns the correct interpretation of the commercial general liability (CGL) policy that Farmers sold to Bresee. For the reasons explained below, we reverse. The trial court granted a motion for...
DE MUNIZ, J. Plaintiff's — Synectic Ventures I, LLC, Synectic Ventures II, LLC, and Synectic Ventures III, LLC — entered into a loan agreement regarding money that they had loaned to defendant EVI Corporation. The loan agreement provided that the loan, which was secured by a security interest in essentially all of defendant's property, would be converted to equity ownership in defendant, if defendant obtained additional financing by a certain date. Shortly before that deadline, the managing...
DE MUNIZ, J. In this juvenile dependency proceeding, a father was found by the court to have subjected one of his children to sexual abuse. Although the child was unavailable to testify at the proceedings, the juvenile court admitted into evidence child's out-of-court statements. Father contends that the juvenile court's theory for admitting the statements — that they were the statements of a party-opponent and, therefore, not hearsay — betrayed a fundamental misunderstanding of the evidence...
LINDER, J. This case requires that we resolve a purported conflict between two statutes relating to the issuance of a writ of mandamus: ORS 34.110, which precludes issuance of a writ of mandamus if the relator has a plain, speedy, and adequate remedy in the ordinary course of law, and ORS 34.130(3), which states that a writ of mandamus "shall be allowed" by a court or judge on the petition for the writ. After plaintiff 1 filed in the circuit court a petition for an alternative writ, the court...
DE MUNIZ, J. This case arises under provisions of the Oregon Securities Law set out in ORS chapter 59. The State of Oregon, acting by and through the Oregon State Treasurer, and the Oregon Public Employee Retirement Board (PERB), on behalf of the Oregon Public Employee Retirement Fund (PERF) (collectively, "state"), have asserted claims against Marsh & McLennan Companies, Inc. (MMC) and Marsh, Inc.(MI) (collectively, "Marsh"). The state alleges that Marsh engaged in a scheme perpetrated by...
BALMER, C.J. Taxpayer appeals from a judgment of the Tax Court, Regular Division, which rejected various arguments asserted by taxpayer and found taxpayer liable for the taxes assessed by the Department of Revenue (department). We affirm. Taxpayer owned and operated The Tobacco Leaf, a retail store in Mill City. Taxpayer purchased tobacco products for resale from, among other sellers, Lil Brown Smoke Shack (LBSS), a business located on the reservation of the Confederated Tribes of the Yakama...
BALMER, C.J. This case requires us to decide whether a local church or the national church from which it seeks to separate owns certain church property. Hope Presbyterian Church of Rogue River (Hope Presbyterian) is the name of a church congregation and a related nonprofit corporation. The congregation has been affiliated with a national Presbyterian Church organization since its founding in 1901, most recently affiliating with the Presbyterian Church (U.S.A.) (PCUSA), and its regional...
WALTERS, J. In this criminal case, we consider whether a physician's conclusion that defendant physically had abused a child met the requirements for admissibility of scientific evidence. We hold that it did not, that the trial court erred in admitting the evidence, and that the error was not harmless. Consequently, we reverse defendant's convictions and remand for further proceedings. The child in this case, C, was approximately 18 months old when he arrived at the emergency room with...
DE MUNIZ, J. In these two criminal cases consolidated for purposes of opinion, each defendant's conviction was based, for the most part, on eyewitness identification evidence. In State v. Lawson, 239 Or.App. 363 , 244 P.3d 860 (2010), the Court of Appeals concluded that, despite the state's use of unduly suggestive pretrial identification procedures, under the test first articulated by this court in State v. Classen, 285 Or. 221 , 590 P.2d 1198 (1979), the victim's identification of...
LANDAU, J. In this construction defect case, defendant moved for summary judgment, and the trial court granted the motion. Plaintiff then filed a "motion for reconsideration" of the summary judgment ruling. The court meanwhile entered judgment, and plaintiff filed a notice of appeal. When the trial court later denied the motion for reconsideration, plaintiff did not file a new notice of appeal. The question in this case is whether plaintiff needed to do so. Defendant argues that, because a...
WALTERS, J. This is an automatic and direct review pursuant to ORS 138.012(1) of sentences of death imposed on defendant after a "penalty phase" trial. 1 Defendant raises 33 assignments of error. Five of them merit discussion, specifically, defendant's claims that (1) the adoption of Article I, section 40, of the Oregon Constitution, which, provides that, in specified circumstances, death shall be the penalty for aggravated murder, violated the "separate vote" requirement of Article XVII,...
DE MUNIZ, J. This case requires us to examine the operative text of a voter-approved ballot measure that purported to depend for its efficacy upon the passage of a companion measure that voters rejected. The trial court concluded that the text at issue was severable from the ballot measure and ruled that the remaining provisions of the measure were, according to the plain text of the measure itself, dormant. The Court of Appeals affirmed that judgment. Hazell v. Brown, 238 Or.App. 487 ,...
BALMER, C.J. In this original mandamus proceeding, relator, a criminal defendant who was released from custody pursuant to a security release agreement, seeks to compel the judge who set the terms of the agreement to modify a condition that forbids him from having contact with his father. In his mandamus petition, and again in his brief on the merits in this court, defendant made two legal arguments: that the trial court had no statutory authority to impose the condition and that, if the...
WALTERS, J. In this case, we decide that, in an action under ORS 30.866 in which a plaintiff seeks both a stalking protective order and a judgment for compensatory money damages, the parties are entitled to a jury trial on the claim for money damages. Plaintiff 1 filed a petition under ORS 30.866, 2 alleging that defendant had engaged in knowing and repeated unwanted sexual contact with her in the two years preceding the filing of the petition and that that contact had caused plaintiff...
KISTLER, J. ORS 742.061 authorizes an award of attorney fees to an insured who prevails in "an action * * * in any court of this state upon any policy of insurance of any kind or nature * * *." A later enacted statute, ORS 742.001, provides that ORS chapter 742 "appl[ies] to all insurance policies delivered or issued for delivery in this state * * *." The question in this case is whether ORS 742.001 precludes awarding attorney fees to an insured who prevails in an action in an Oregon court...
KISTLER, J. An emergency room doctor telephoned defendant (an on-call neurosurgeon) to ask his advice about plaintiff, who had come into the emergency room for treatment. When plaintiff later sued defendant for malpractice, the jury returned a verdict in defendant's favor; the jury found that defendant was not acting as plaintiff's doctor and, as a result, owed her no duty. The Court of Appeals reversed, holding that the trial court should have directed a verdict in plaintiff's favor on that...
WALTERS, J. In this case, the trial court found that defendant's statements to private investigators were induced by the investigators' promises of leniency and other benefits and therefore suppressed those statements and a second set of inculpatory statements that defendant made to a police officer on the same subject, both pursuant to ORS 136.425(1). 1 The Court of Appeals affirmed the trial court's order in part and reversed it in part. We affirm the order of the trial court. This case...
KISTLER, J. Defendant CTE Tech Corp. is a Taiwanese corporation that manufactures battery chargers. 1 Defendant Invacare Corporation is an Ohio corporation that manufactures motorized wheelchairs. CTE agreed to supply Invacare with battery chargers built to Invacare's specifications, which Invacare then sold with its motorized wheelchairs in Oregon and the rest of the United States. Plaintiffs brought this action against CTE after their mother died in a fire allegedly caused by a defect in...
WALTERS, J. This tax case arises on direct review of a decision of the Tax Court awarding attorney fees to the taxpayer, Village At Main Street Phase II LLC (Village), after its successful challenge to the Clackamas County Assessor's (the county's) property tax assessment on certain improvements to its property. The Tax Court issued an order and supplemental judgment naming the county as the judgment debtor, but requiring the Department of Revenue (the department) to pay the attorney fees...
