PER CURIAM. Defendant pleaded guilty to three counts of contempt based on his violation of a restraining order. On appeal, defendant argues that the trial court plainly erred by entering three separate convictions when, in fact, each of the counts was based on a single course of conduct that violated three separate provisions of a restraining order. The state concedes that the trial court plainly erred in that respect. See State v. Mason, 241 Or.App. 714 , 719, 250 P.3d 976 (2011) (...
ARMSTRONG, P.J. In this dissolution case, the trial court granted wife's motion to set aside the parties' dissolution judgment pursuant to ORCP 71 B(1)(d) 1 on the ground that the court lacked subject matter jurisdiction and the dissolution judgment was thus void. Husband appeals the resulting order vacating the general judgment and dismissing the case, raising two assignments of error. In his first assignment, he argues that wife's motion was barred by claim preclusion and that the trial...
SCHUMAN, P.J. Defendant Terry Emmert was a member of plaintiff Evergreen West Business Center, LLC (Evergreen), a limited liability company formed to purchase and develop property located in Washington County. Evergreen purchased the property with a loan from West Coast Bank, but eventually fell behind on payments and was at risk of losing the property to foreclosure. According to Evergreen, Emmert agreed to work with West Coast Bank to postpone the foreclosure, but, rather than do as promised,...
WOLLHEIM, J. This case stems from a murder committed on August 26, 1999. This is the third time the case has been before this court. Defendant was charged with murder, former ORS 163.115(5) (1997), and felon in possession of a firearm, ORS 166.270. In 2001, a jury convicted defendant on both counts. In defendant's first appeal, this court considered defendant's unpreserved error on sentencing. We affirmed defendant's convictions and remanded for resentencing. State v. Giles, 199 Or.App....
WOLLHEIM, J. In this unemployment tax case, petitioner 3P Delivery, Inc. (3PD), an interstate motor carrier, seeks judicial review of a final order of an administrative law judge (ALJ) of the Office of Administrative Hearings determining that 3PD had taxable payroll for all four quarters of 2006 and 2007 and affirming unemployment tax assessments by the Employment Department (the department). 3PD contends that the ALJ erred in determining that delivery services provided to 3PD by "owner-...
HASELTON, C.J. Plaintiff Pfizer Inc. (Pfizer 1 ) appeals a general judgment, declaring that over 100 exhibits that Pfizer had produced during the course of an investigation by defendant Oregon Department of Justice (DOJ) concerning Pfizer's marketing of the medications Bextra and Celebrex, as well as an annotated complaint predicated on those exhibits, are not exempt from disclosure under the parties' confidentiality agreements. On appeal, Pfizer contends that the trial court erred in denying...
WOLLHEIM, J. 3P Delivery, Inc. (3PD) seeks review of an order of the Employment Appeals Board (EAB) concluding that claimant Brian Newrones is not disqualified from receiving unemployment benefits under ORS 657.176. 3PD contends that claimant is not eligible for benefits because claimant's services were excluded from employment under ORS 657.047, the "for-hire" carrier exemption. We affirm EAB's order. The facts are not disputed and we rely on EAB's findings of fact and the record. 3PD is a...
HASELTON, C.J. This appeal arises from a jury verdict in favor of Maureena Schmaing on her counterclaim for wrongful discharge against her employers, Daniel G. Koller, D.V.M., dba Companion Pet Clinic, NE 82nd Ave. (Koller), and Companion Pet Clinic of NE Portland, LLC (Pet Clinic). 1 Although the procedural posture on appeal is, as we shall describe, convoluted, the parties' dispute centers on issues which, as amplified below, we ultimately resolve as follows: (1) The only operative judgment,...
BREWER, J. In this medical negligence action, defendant Portland Adventist Medical Center appeals from a judgment awarding plaintiff damages on her claim that defendant failed to timely diagnose, and properly treat, a heart attack that she suffered on July 19, 2007. 1 Defendant assigns error to the trial court's denial of its motion for a directed verdict. We affirm. We set out the evidence in the light most favorable to plaintiff, who prevailed at trial. Rathgeber v. James Hemenway, Inc.,...
ARMSTRONG, P.J. Plaintiff appeals a judgment for defendants, assigning error to the trial court's grant of summary judgment to defendants, which was based on the court's conclusion that plaintiff's claims were time barred. We conclude that the trial court erred in granting summary judgment and, accordingly, reverse and remand. Plaintiff is a Portland church. Defendants are the general contractor with which plaintiff contracted to construct the first phase of a new church facility and some of...
ORTEGA, P.J. Petitioner in this post-conviction proceeding was convicted in 2004 of two counts of first-degree rape, ORS 163.375, 1 two counts of first-degree unlawful sexual penetration, ORS 163.411, 2 two counts of first-degree sexual abuse, ORS 163.427, two counts of first-degree kidnapping, ORS 163.235, 3 and one count of third-degree assault, ORS 163.165. Petitioner then filed this post-conviction relief proceeding, asserting, among other things, that his trial counsel was...
ORTEGA, P.J. Defendant was convicted of one count of menacing, ORS 163.190, based on his plea of guilty. His sole contention on appeal is that the trial court erred in imposing $400 in attorney fees without a sufficient basis to conclude that he "is or may be able to pay" those fees, as required by ORS 151.505 and ORS 161.665. We conclude that there was a sufficient basis for the court to impose the fees and, accordingly, affirm. The relevant facts are few and undisputed. Defendant entered a...
BREWER, J. Plaintiff appeals a judgment in which the trial court quieted title in favor of defendant Parks, based on adverse possession, to 40 acres of undeveloped land located in the coastal town of Nedonna Beach. The trial court's decision was premised on the intermediate conclusion that plaintiff was the record owner of the property based on the doctrine of accretion. Defendant cross-assigns error to that conclusion. Because we agree with defendant that plaintiff failed to establish that it...
SERCOMBE, J. In this breach of contract action, plaintiff Peace River Seed Co-operative, Ltd. (Peace River) sought to recover damages from defendant Proseeds Marketing, Inc. (Proseeds) based on Proseeds' failure to purchase grass seed from Peace River as agreed pursuant to a series of contracts. The case was tried to the court, which entered a general judgment awarding Peace River damages along with prejudgment interest, post-judgment interest, and costs and disbursements. Peace River now...
DUNCAN, J. Petitioner appeals the post-conviction court's judgment denying him relief from his convictions for first-degree rape, ORS 163.375, first-degree sodomy, ORS 163.405, and first-degree sexual abuse, ORS 163.427. He argues that his trial counsel was inadequate under Article I, section 11, of the Oregon Constitution and ineffective under the Sixth and Fourteenth Amendments to the United States Constitution in failing to properly litigate the state's motion to exclude all evidence that...
DUNCAN, J. In this insurance-coverage dispute, defendant, Friend, was injured in an automobile accident. At the time, Friend was driving a 1967 Ford Mustang whose registered owner was Tamer Kehkia, the owner and president of TWW, Inc. (TWW), an auto dealer. 1 Friend sought underinsured motorist (UIM) benefits from TWWs insurer, Truck Insurance Exchange (Truck), under TWWs garage policy. Truck brought this action, seeking a declaration that Friend was not entitled to UIM benefits under TWWs...
ORTEGA, P.J. This appeal involves a dispute over priority by two creditors of Klahowya Condominium, LLC, (Klahowya), the developer of a failed property development. The trial court concluded that trust deeds held by defendant Shorebank Pacific Corporation (Shorebank) had priority over an architect's lien filed by plaintiff SERA Architects, Inc. (SERA) and entered a limited judgment to that effect. The trial court's decision had two aspects: first, that Shorebank's trust deed had priority under...
ORTEGA, P.J. After a jury trial, the trial court entered a judgment convicting defendant of two counts of aggravated murder, ORS 163.095, and two counts of first-degree abuse of a corpse, ORS 166.087. 1 On appeal from those convictions, defendant asserts, in three assignments of error, that the trial court erred in denying his motions to suppress. 2 Specifically, defendant argues that the trial court should have suppressed evidence that, in his view, was obtained as a result of the police...
SCHUMAN, P.J. Petitioner, an architectural design company, hired Jason Singer to provide drafting services on some of petitioner's projects. The Employment Department Tax Section sent a Notice of Tax Assessment to petitioner, claiming that petitioner had employed Singer for part of 2009 but had not paid employment taxes on his wages for that period. Petitioner requested a hearing on the assessment and argued to an administrative law judge (ALJ) that Singer was an independent contractor rather...
BREWER, J. This case comes before us in a unique procedural posture. In a juvenile dependency case that is entirely separate from the case at hand, defendant Waller, the Presiding Family Court Judge of the Multnomah County Circuit Court, denied the request of plaintiff The Oregonian for access to a shelter care order that the judge had made in that case. Plaintiff asserted that the order was subject to public disclosure under the Oregon Public Records Law, ORS 192.410 to 192.505, and...
