NAKAMOTO , J. This case involves consolidated appeals arising out of a condemnation proceeding and concerns the amount of attorney fees and expenses to which defendant is entitled, in light of a settlement offer by plaintiff, Washington County, that defendant did not accept. The settlement procedure at issue in this case is located at ORS 35.300. Under that statute, a condemner may serve an "offer of compromise" on a defendant at any time after filing a condemnation action, up until 10...
NAKAMOTO , J. Plaintiff Qwest Corporation 1 appeals from the trial court's judgment granting defendant City of Portland declaratory relief. Qwest assigns error to the trial court's declaratory ruling that the "utility license fee" (ULF), a tax imposed by the city, does not violate a state law capping the amount municipalities may charge telecommunications carriers for the use of municipal rights-of-way. Qwest argues that the ULF is preempted in that it is actually a privilege tax governed...
HASELTON , C.J. Plaintiffs Kerry and Scott Tomlinson (the Tomlinsons) and their son, Edward Tomlinson (Teddy), through his mother as guardian ad litem, appeal a judgment dismissing their claims for negligence against defendants Metropolitan Pediatrics, LLC, and Mary K. Wagner, M.D. (collectively Metropolitan) and Legacy Emanuel Hospital & Health Center (Legacy), medical service providers for the Tomlinsons' older son Emanuel Tomlinson (Manny). In those claims, the Tomlinsons and Teddy...
EGAN , J. In this workers' compensation case, an administrative law judge (ALJ) dismissed claimant's claim, concluding that her request for a hearing was untimely. Claimant requested review of the ALJ's determination. The Workers' Compensation Board (board) issued an order on review that did not address the issue of the timeliness, but rather proceeded directly to the merits of the claim, ultimately concluding that "SAIF's denial is upheld." Claimant requested reconsideration, arguing that...
NAKAMOTO , J. This case concerns the proper amount of tax credit that petitioner should have received for its renewable energy facility under Oregon's business energy tax credit program. A business energy tax credit is calculated based on the "certified cost" of constructing such a facility, as determined by the Oregon Department of Energy. Petitioner built a renewable energy facility for which it was eligible for a business energy tax credit. Although petitioner's actual construction...
PER CURIAM . This case is on remand from the Oregon Supreme Court for the second time. Greenwood Products v. Greenwood Forest Products, 238 Or.App. 468 , 242 P.3d 723 (2010) (Greenwood I), rev'd in part and rem'd, 351 Or. 604 , 273 P.3d 116 (2012) (Greenwood II), on remand, 264 Or.App. 1 , 330 P.3d 662 (2014) (Greenwood III), rev'd and rem'd, 357 Or. 665 , 359 P.3d 219 (2015) (Greenwood IV). A recitation of the facts would not benefit the bench, the bar, or the public....
GARRETT , J. Defendant appeals a general judgment and money award to plaintiff in the amount of $3,459,078.55. Plaintiff, a bank, lent money to an Oregon construction company for the construction of homes. Defendant personally guaranteed the loan. After a default, plaintiff foreclosed on the properties and sold them at a trustee's sale. Plaintiff then sued defendant for the deficiency—the difference between the amount of the loan and the amount that plaintiff received from the sale of the...
ORTEGA , P.J. Claimant challenges a Workers' Compensation Board order that upheld employer's "combined condition" denial and employer's denial of claimant's request for medical services. 1 On judicial review, claimant contends that employer's combined condition denial was improper because employer failed to prove that claimant had a preexisting condition at the time of his work injury and, thus, the preexisting condition identified by employer could not have been the major contributing...
PER CURIAM . The trial court, on its own motion, dismissed plaintiff's habeas corpus petition on the ground that similar claims had been adjudicated in plaintiff's five previous habeas cases. Plaintiff appeals the judgment of dismissal, arguing that the trial court erred in giving preclusive effect to the judgments in the earlier cases. Defendant concedes the error, and we reverse and remand. An extended discussion of the background of this case would not benefit the bench, the bar, or the...
DeVORE , J. In these consolidated cases, petitioner Cascade Kelly Holdings filed an action in the Circuit Court of Marion County under ORS 183.490 of the Administrative Procedures Act (APA) and an alternate claim for declaratory relief under ORS 28.010, seeking to compel the Oregon Department of Energy to certify that petitioner is entitled to claim or to sell business energy tax credits pursuant to former ORS 469.215 (2009), for petitioner's ethanol production and transfer facilities. 1...
HADLOCK , J. Petitioner was convicted of two counts of first-degree rape following a jury trial. Petitioner unsuccessfully appealed, then sought post-conviction relief based on allegations that he received inadequate assistance from his trial lawyer. The post-conviction court entered a judgment denying relief. On appeal from that judgment, petitioner first asserts that the court erred when it rejected his inadequate-assistance claim. We reject that argument, which forms the basis for...
SERCOMBE , P.J. Plaintiff succeeded her mother, Veryl G. Gibson (Gibson), as trustee of a trust for the benefit of Gibson and her family. Defendants Sharon Bankofier, a real estate agent, and Oregon Realty Company (ORC), a realty company, facilitated the purchase of real property interests by the trust when Gibson was the trustee. Several of those investments failed. After Gibson became incompetent, plaintiff, as the successor trustee, brought an action against defendants. Plaintiff...
SERCOMBE , P.J. Petitioner seeks judicial review of a final order of the Department of Public Safety Standards and Training (DPSST) that revoked her certifications as a corrections officer on the ground that she failed to meet minimum moral fitness standards. Petitioner raises two assignments of error. We reject her second assignment without discussion and write to address her first assignment, in which petitioner asserts that DPSST erred when it concluded, on summary determination, that...
NAKAMOTO , J. This is a complex civil case that arose after a fire destroyed plaintiff's multi-million dollar home and its contents. Plaintiff brought a breach-of-contract claim against his insurer, Safeco, for failing to pay him the "extended dwelling coverage" under his insurance policy based on an oral settlement agreement that he made with Safeco (the fire-loss claim), and for failing to pay on a claim for a theft that plaintiff alleged occurred after the fire (the theft-loss claim)....
NAKAMOTO , J. This criminal appeal is before us on remand from the Oregon Supreme Court, State v. Delong, 260 Or.App. 718 , 320 P.3d 653 (2014) (Delong I), rev'd and rem'd, 357 Or. 365 , 350 P.3d 433 (2015) (Delong II). The issues on remand are narrow. After handcuffing defendant during a traffic stop, a deputy sheriff asked defendant whether there was anything in his car that the police "should be concerned about," but he failed to advise defendant of his Miranda rights, in...
HASELTON , C.J. The state appeals a judgment dismissing this action pursuant to the Oregon Unlawful Trade Practices Act (UTPA), ORS 646.607 and ORS 646.608, against defendants, who manufacture and distribute the over-the-counter painkiller Motrin. The state argues that the trial court, in dismissing the action under ORCP 21 A(8), erroneously concluded that the failure to disclose a known material risk that goods sold in Oregon may be defective is not actionable under the UTPA. We...
FLYNN , J. Plaintiffs appeal a judgment for defendant Jerry O. Anderson 1 on plaintiffs' action to recover on a loan that plaintiffs made to JJR Enterprises, LLC (JJR), an Oregon limited liability company of which defendant was a member. Plaintiffs alleged that defendant was personally liable on the promissory note for the loan to JJR, in the way that a general partner would be liable for a loan to a partnership, because JJR had been administratively dissolved prior to taking on the loan...
LAGESEN , J. Complications with post-polypectomy bleeding from a polypectomy performed in 2009 by gastroenterologist Dr. Gonenne left Franklin Rowen paralyzed from the waist down. Rowen and his wife, Marie, plaintiffs in this matter, sued Gonenne, as well as Gonenne's professional corporation, Eugene Gastroenterology Consultants, P.C., and the surgical facility where the procedure was performed, Oregon Endoscopy Center ("the Center"). Rowen alleged claims for negligence, and Marie alleged...
DeVORE , J. Plaintiff filed a report to police alleging that he had been poisoned on the job at the MacLaren Youth Correctional Facility. After finding that plaintiff had not been poisoned, the Oregon Youth Authority (OYA) discharged him. OYA did so, at least in part, because it believed that plaintiff had filed a false report with police. Plaintiff responded with civil claims against OYA, among others, for violations of Oregon's whistleblowing statutes, common-law wrongful discharge, and...
LAGESEN , J . This is an action for professional negligence. Plaintiffs allege that defendant, their former lawyer, 1 committed malpractice through a course of dealing with plaintiffs that eventually forced them to sell off a valuable stone quarry, resulting in $2 million in damages. The trial court granted defendant's motion for summary judgment, ruling that plaintiffs' malpractice claim was barred by the statute of limitations and, alternatively, that it was barred by a settlement...
