SERCOMBE, J. Defendant Beneficial Fire and Casualty Insurance Company (Beneficial) petitions for reconsideration of our decision in Certain Underwriters v. Mass. Bonding and Ins. Co., 235 Or.App. 99 , 230 P.3d 103 (2010), requesting that we address an assignment of error that we initially declined to reach. For the reasons that follow, we allow the petition, reach and reject that assignment of error, and modify our original opinion accordingly. Although the circumstances giving rise to...
ORTEGA, J. Claimant seeks judicial review of an Employment Appeals Board (the board) decision denying him unemployment benefits because he voluntarily left his employment without good cause. On appeal, claimant contends that he left work with good cause because he was subjected to discrimination and harassment based on his status as a Native American. Claimant argues that the board's findings and conclusions to the contrary are not supported by the record. Although we agree with some of...
EDMONDS, S.J. Defendant appeals judgments of conviction for unlawful manufacture of marijuana, ORS 475.856; unlawful delivery of marijuana, ORS 475.860; unlawful possession of marijuana, ORS 475.864; child neglect in the first degree, ORS 163.547; and endangering the welfare of a minor, ORS 163.575. On appeal, he assigns as error the denial of his motion to continue the trial of the above charges. We reverse and remand. Defendant was indicted on the above charges on July 27, 2007, in...
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. See ORS 36.730 (granting right to appeal). PacifiCorp's and Jeld-Wen's predecessors in interest entered into a stipulation in 1920 (1920 stipulation), which included an agreement to arbitrate any claims for damages. Because Oregon's arbitration act unambiguously applies to arbitration agreements "whenever made," the...
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. There was, for a long while, no regulatory mechanism to subsequently verify whether the utility's tax projections—and the amount assumed in rates—bore any relationship to the amount of taxes actually paid by the utility. In 2005, the Oregon legislature passed a law intended to close that loophole, thereby prohibiting public utilities from charging...
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, defendants were responsible for his development of mesothelioma. 1 This appeal involves one of those defendants, Union Carbide Corporation (Union Carbide). Plaintiff alleged that Union Carbide supplied raw asbestos to U.S. Gypsum (USG) at USG's manufacturing plant in Southgate,...
SERCOMBE, J. Plaintiffs own a residential lot in a planned community that is regulated by the Oregon Planned Community Act. ORS 94.550-94.783. Plaintiffs brought suit against another lot owner, the Armons, and the homeowners' association for the planned community, the High Lostine Owners' Association (association). 1 The complaint asserted various claims related to the covenants, conditions, and restrictions (CCRs) of record for the lots. Plaintiffs alleged that the Armons were violating...
ROSENBLUM, J. Petitioner appeals a judgment upholding the denial by respondent, the Sheriff of Douglas County, of petitioner's application for renewal of his concealed handgun license (CHL). The application included questions about use of controlled substances. After petitioner filed the application, respondent learned that petitioner was listed in the Oregon Health Authority's medical marijuana database. Respondent asked petitioner to answer several follow-up questions about marijuana use....
SCHUMAN, P.J. Plaintiff retired from her position with the Oregon Department of Human Services (DHS) in 2003. Three years later, having apparently reconsidered, she twice applied for a full-time position with the same agency. On neither occasion was she hired. Subsequently, she brought claims against the state for, among other things, age discrimination and defamation. Against her former supervisor at DHS, who had provided a negative reference, she brought claims of defamation and intentional...
SERCOMBE, J. This case presents another question about the meaning of Measure 49, the referendum that replaced Measure 37 and altered its remedies for a reduction in property value caused by a land use regulation. In particular, Measure 49 changed the legal effect of any state or local government waiver of restrictive land use regulations that had been obtained as a Measure 37 remedy ("Measure 37 waiver"). Plaintiffs obtained a Measure 37 waiver from the county in order to allow residential...
SCHUMAN, P.J. In order to provide access to two new schools, the Sherwood School District needed to build a new public street. Because the street would benefit not only the new schools but also other abutting properties—including property owned by plaintiffs—the school district asked the City of Sherwood to invoke its power to create a "reimbursement district" and thereby require the nearby property owners to share in the cost. The city passed a resolution doing so and leveling a conditional...
SERCOMBE, J. Petitioners seek review of a final order of the director of the Oregon Department of State Lands (DSL) that affirmed the issuance of a fill/removal permit to the Coos County Salmon Trout Enhancement Program Commission (Coos STEP). Coos STEP applied for the permit in conjunction with its proposed plan to move and reconstruct a fish hatchery on Morgan Creek. The issues in this case concern inconsistencies between the statutory standards for issuing a fill/removal permit, ORS 196.825...
SERCOMBE, J. This appeal arises out of a jury verdict in a wrongful death case against two physicians. The jury returned a verdict for plaintiff, assigning fault to defendants, decedent, and decedent's father. Plaintiff appeals, asking us to reverse the trial court's judgment to the extent fault is attributed to decedent and decedent's father, and to remand the case to the trial court for the entry of judgment allocating 50 percent fault to each defendant. Defendants cross-appeal, challenging...
WOLLHEIM, J. In these consolidated cases, the appellant, Boly, contends that the trial court erred in ruling in favor of the respondent, Davis, in two related actions involving a small farm owned by Hulse, Boly's aunt. Davis was Hulse's attorney and, after her death in 2004, the personal representative of her estate. In his capacity as personal representative, Davis agreed to sell the farmland to a third-party developer. In the meantime, however, Boly had been negotiating with the Beaverton...
ARMSTRONG, J. Respondent appeals an order denying his motion to seal the court file and other records stemming from a civil stalking proceeding against him, contending that the trial court had the inherent authority to seal the records after it had denied petitioner's request to enter a permanent stalking protective order (SPO) against respondent. Respondent further argues that the court abused its discretion in denying his motion, because removing the potential stigma associated with...
ARMSTRONG, J. Defendant appeals a judgment for plaintiff in an action under the Oregon Unlawful Trade Practices Act (UTPA), ORS 646.605 to 646.656. 1 Plaintiff sought damages arising from defendant's sale to plaintiff of a single-family home that had a water leak in the basement. Plaintiff alleged that defendant had misrepresented that the house was of sound quality and character and had failed to disclose the material defect that the basement leaked. See ORS 646.608(1)(e), (t). After a...
ROSENBLUM, J. Claimant filed an application with the Public Employee Retirement System (PERS) for disability retirement allowance after resigning from a 16-year career with Multnomah County. PERS administratively denied his claim, concluding that claimant was not entitled to a disability allowance because he failed to prove that he was disabled to such an extent that he was unable to perform "any work for which qualified." ORS 238.320(3); OAR 459-015-0005(1). After a hearing, an administrative...
ARMSTRONG, J. Petitioner, The Athletic Club of Bend, Inc. (athletic club), applied to the City of Bend for site plan approval for a new driveway and associated public roadway improvements on and adjacent to a parcel of land in a subdivision. A hearings officer denied petitioner's application after concluding (1) that the current version of the Bend Development Code (BDC) applied to the off-site components of petitioner's proposed project and (2) that petitioner's site plan failed to meet the...
PER CURIAM. Appeal dismissed. City of Eugene v. Smyth (A141624), 239 Or.App. 175 , 243 P.3d 854 (2010).
DUNCAN, J. Defendant was charged with driving under the influence of intoxicants (DUII) in violation of Eugene City Code (ECC) 5.005. 1 He was convicted in municipal court and appealed to the circuit court, where he was convicted after a trial de novo. Defendant now appeals to this court, arguing that the circuit court erred by excluding evidence that his acts of drinking alcohol and driving were not voluntary. In response, the city argues that we do not have jurisdiction to reach defendant'...
