SCHUMAN, P.J. Plaintiff Cynthia McNeff was hired by defendant Terry Emmert to work as inhouse legal counsel for his company, Emmert Industrial Corp. (EIC), which is also a defendant in this case. Less than a year into the job, plaintiff was fired. She subsequently brought breach of contract, tort, and employment discrimination claims against defendants. In response, defendants counterclaimed for fraud, breach of contract, and malpractice. After the parties presented their cases, the trial...
ORTEGA, P.J. Husband appeals a general judgment of dissolution awarding spousal support, an order of contempt for violating that general judgment by not paying spousal support, and a supplemental judgment awarding attorney fees. We write to address husband's first assignment of error, that the trial court's transitional spousal support award was based on a finding of his earning capacity that the record does not support. We conclude that the trial court did not err in that award and reject...
DUNCAN, J. In this criminal case, defendant appeals a judgment convicting him of first-degree sexual abuse, ORS 163.427(1)(a)(B), third-degree sexual abuse, ORS 163.415(1)(a)(A), and first-degree burglary, ORS 164.225. Defendant raises six assignments of error. We write only to address the second and third assignments of error, which concern jury instructions that defendant requested on the first- and third-degree sexual abuse counts. 1 We agree with defendant that, as to the first-degree...
DUNCAN, P.J. Under Lincoln County's zoning regulations, a "firearms training facility" is allowed as a conditional use within areas zoned for timber conservation, and a property owner who wishes to establish a firearms training facility in such an area must apply for a conditional use permit. The question in this case is whether that permit requirement is preempted under state law — more specifically, under ORS 166.170, ORS 166.171, and ORS 166.176, three statutes that concern preemption of...
DUNCAN, J. In this declaratory judgment action, defendants Felix and Jorge Torres-Lizama appeal a judgment declaring that they were not employed by plaintiff, Cejas Commercial Interiors, Inc., within the meaning of Oregon's minimum-wage law, ORS 653.025. 1 Defendants contend that plaintiff, a drywall contractor, was their employer while they did drywall work that plaintiff had subcontracted to Viewpoint Construction, LLC (Viewpoint). Consequently, defendants assert, plaintiff was required to...
ARMSTRONG, P.J. This is a consolidated medical fee dispute in which petitioners, Back in Action Physical Therapy (Back in Action) and 11 other medical providers, seek review of final orders of the Department of Consumer and Business Services (DCBS) concluding that petitioners were not entitled to additional payments from Liberty Northwest Insurance Corporation (insurer) for physical therapy services provided by petitioners to injured workers under the workers' compensation system. Generally,...
ARMSTRONG, P.J. Petitioner WaterWatch of Oregon, Inc., seeks judicial review of a final order in a contested case in which the Water Resources Department (the department) granted the City of Cottage Grove (Cottage Grove or the city) an extension of time to perfect its water rights under a permit first issued in 1977. Petitioner contends that the department erroneously interpreted ORS 537.230(2) 1 by failing to condition the permit extension on the protection of certain fish species, ORS...
WOLLHEIM, J. The dispute here is a familiar one: a construction defect action by a homeowners association against the developer and general contractor, who then filed third-party complaints against the multiple subcontractors. Most, but not all, of the claims settled. The claims of the developer and general contractor, La Noue Development, LLC (La Noue), against several subcontractors went to trial. Although La Noue prevailed, the jury awarded limited damages. This appeal relates to La Noue's...
HADLOCK, J. Plaintiff appeals a general judgment in this wrongful discharge case, assigning error to the trial court's grant of summary judgment in favor of defendant Washington County. The trial court entered judgment for the county based on its determination that plaintiff's claim was untimely because it had accrued in April 2003, more than two years before plaintiff filed her claim. We conclude that the summary judgment record includes evidence from which a factfinder could determine that...
ORTEGA, P. J. Father appeals a judgment establishing custody, parenting time, and child support for the parties' minor child. On appeal, father asserts that the trial court erred in ordering that child support should commence from the date that the parties separated because the petition was filed pursuant to ORS 109.103 and the court, therefore, did not have authority to order retroactive child support. Mother responds that, because she had filed a motion in the action in which she cited ORS...
SERCOMBE, P. J. Plaintiff appeals a judgment dismissing her claims for defamation and wrongful use of civil proceedings. As pertinent to this appeal, the judgment was entered after the trial court granted defendant's special motion to strike, which was brought pursuant to ORS 31.150, Oregon's "anti-SLAPP" (Strategic Lawsuits Against Public Participation) statute. Plaintiff argues that the trial court erred in applying ORS 31.150, specifically assigning error to (1) the trial court's...
SCHUMAN, P.J. Plaintiffs are property owners who use only organic and sustainable farming and forestry practices. Some of their neighbors use pesticides and other chemicals that, plaintiffs allege, migrate onto their property and into their persons. In an earlier case, plaintiffs Hale and Wroncy filed an action against a neighbor alleging that the chemical intrusion was a trespass. See Hale v. Klemp, 220 Or.App. 27 , 184 P.3d 1185 (2008). The neighbor raised an affirmative defense based...
SCHUMAN, P.J. Plaintiff Cascade Pacific Pulp, LLC (Cascade) and defendant Georgia-Pacific Consumer Products LP (Georgia-Pacific) are the present owners of adjoining mills in Halsey, Oregon. The two mills, paper and pulp, were once part of an integrated facility with a single owner, and they share a common infrastructure, including a water treatment system and an effluent discharge system. After the two mills came under separate ownership (by the parties' predecessors-in-interest), disputes...
NAKAMOTO, J. In 2003, respondents, the Governor and other executive officers of the State of Oregon, signed a tribal-state gaming compact between the state and the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians (the Tribes) pursuant to the Indian Gaming Regulatory Act, 25 USC 2701-2721 (IGRA). Under IGRA, states are required to negotiate with tribes in good faith for a compact covering all gaming activities that are permitted in a state "for any purpose by any person,...
ARMSTRONG, P.J. The state appeals a judgment granting petitioner post-conviction relief and setting aside his convictions for four counts of first-degree sexual abuse, ORS 163.427, and two counts of endangering the welfare of a minor, ORS 163.575. The state argues that the post-conviction court erroneously concluded that trial counsel's failure to object to testimony regarding "treatment recommendations" rendered his performance constitutionally inadequate. Further, the state argues that,...
EGAN, J. Plaintiff brought a personal injury action and obtained a jury award for her economic damages. After judgment was entered, defendant filed a motion for partial satisfaction pursuant to ORS 31.555 in which he sought to reduce the amount of the judgment by the amount that defendant's insurance carrier had previously provided to plaintiff in personal-injury-protection (PIP) benefits. Plaintiff appeals from the trial court's order directing the court clerk to enter that partial...
ORTEGA, P. J. Husband appeals a general judgment of dissolution, contending that the trial court erred in awarding wife transitional spousal support under ORS 107.105(1)(d)(A), and wife cross-appeals, asserting that the trial court should have awarded her indefinite maintenance support. We conclude that the trial court improperly categorized the spousal support in this case as transitional support and, accordingly, reverse and remand the award of spousal support; we otherwise affirm the...
SCHUMAN, P. J. Plaintiff sustained serious injuries when the Chevrolet Cavalier he was driving accelerated out of control, left the road, and rolled over. According to plaintiff, the accident resulted from the driver's side floor mat sliding forward and interfering with his ability to operate the accelerator and brake. He brought this action alleging common-law negligence and product liability against defendant Power Chevrolet, the dealership that sold the car to plaintiff's then-girlfriend. 1...
PER CURIAM. Reversed. Paton v. American Family Mutual Ins. Co., 256 Or.App. 607 , 302 P.3d 1204 (2013).
SERCOMBE, J. Plaintiff, after suffering injuries while working at defendant's McDonald's restaurant, filed a workers' compensation claim that was ultimately denied on the ground that, due to preexisting degenerative disc disease, plaintiff's work activities were not the major contributing cause of his disability or need for treatment. See ORS 656.005(7)(a)(B); ORS 656.266. Subsequently — and on the basis of the same underlying events — plaintiff filed this civil action against defendant,...
