ARMSTRONG , P.J. In these consolidated cases, defendant appeals a trial court order that denied defendant's motions under ORS 138.690 for DNA testing on the ground that defendant had waived in his 1993 plea agreement his right to seek that relief. 1 As explained below, we reverse and remand. We begin with the pertinent historical and procedural facts, which are undisputed, taking them from the trial court's order: 2 "Defendant was convicted and sentenced to death in 1989 following a...
GARRETT , J. Defendant, a school district, appeals a judgment granting declaratory relief to plaintiff, a charter school. The parties' dispute concerns the interpretation of Oregon's charter school law. In 2012, plaintiff requested that defendant "renew their charter agreement" plaintiff's school as provided by statute. Defendant's board voted to approve the renewal, contingent on the successful negotiation of a new charter agreement. After the parties failed to negotiate an agreement,...
DUNCAN , P.J. Plaintiff brought this action seeking to partition real property that she owns as a tenant in common with defendant, her sister. Defendant filed a counterclaim seeking to quiet title to the property in herself. The trial court granted defendant's motions for summary judgment on each claim, concluding that the doctrine of judicial estoppel bars plaintiff from asserting any ownership interest in the property because, in two earlier bankruptcy proceedings, plaintiff had failed...
DUNCAN , P.J. Plaintiff was fired by defendant 1 and subsequently brought a claim against defendant for retaliatory discharge. Plaintiff alleged that his termination was motivated by his involvement in a complaint of sexual harassment occurring at a different company whose ownership interests were intertwined with defendant's. See ORS 659A.030(1)(f) (making it unlawful for an employer to discharge an employee "because that [employee] has opposed any unlawful practice, or because that...
HADLOCK , C.J. Plaintiffs are the parents of a very young child whose liver was severely damaged during surgery performed by defendants, who — at least for purposes of this appeal — do not dispute plaintiffs' allegation that their negligence harmed the child. The child's mother ("plaintiff mother") was informed that the child needed an emergency liver transplant because of the damage caused during the surgery, and she subsequently learned that her body tissues "matched" her child's....
HADLOCK , C.J. This appeal arises out of an equitable action for unjust enrichment between a residential adult foster care facility and the personal representative of the estate of a former resident, Isabell Prichard. Plaintiff, Larisa's Home Care, LLC, claims that it is owed money for services it provided to Prichard because, it asserts, it should be compensated for the difference between the Medicaid-based rate it charged Prichard and a higher "private pay" rate that it contends Prichard...
DeVORE , J. Plaintiffs, Rogue Advocates and Christine Hudson, appeal a general judgment that dismissed their four claims against defendants Jackson County and Mountain View Paving, Inc. Those claims were brought in the context of an ongoing land use dispute over Mountain View's operation of an asphalt batch plant near a tributary of the Rogue River. Plaintiffs originally challenged those operations before the county and the Land Use Board of Appeals (LUBA). LUBA remanded certain land use...
DeVORE , P.J. Plaintiff appeals from a general judgment that dismissed for lack of subject matter jurisdiction its two claims against defendant. 1 Plaintiff's claims allege that defendant has violated county zoning regulations governing defendant's aircraft refueling station and a canopy over that station. The county initially granted defendant site plan approval for the refueling station, but plaintiff appealed the county's decision to the Land Use Board of Appeals (LUBA). LUBA responded...
NAKAMOTO , J. pro tempore . Plaintiff appeals in this product liability civil action resolved by summary judgment in favor of defendant Warren Pumps, LLC. Plaintiff's late husband, Paul McKenzie, served on two aircraft carriers during his naval career, working on and around various pumps that defendant had manufactured and sold to the United States Navy in the 1940s. In claims for strict product liability, negligence, and loss of consortium brought against defendant, plaintiff alleged that...
LAGESEN , J. Defendant was arrested and then convicted pursuant to a conditional guilty plea of Driving Under the Influence of Intoxicants (DUII), ORS 813.010. When defendant refused to consent to a breath test after he was arrested, the arresting officer obtained a telephonic warrant to take two blood samples from him and then executed that warrant. The warrant did not state defendant's name correctly, identifying defendant by the wrong first and middle names. The issue on appeal that we...
DeVORE , J. Plaintiff Kevin Padrick was appointed by the bankruptcy court as the trustee for the liquidation of Summit Accommodators, Inc., a corporation in Chapter 11 bankruptcy. Plaintiff brought this action against Summit's former attorney, Kevin Keillor, and Keillor's law firm, Hurley Re, PC. (defendants). 1 Plaintiff sought damages for defendants' alleged tortious conduct while Keillor was representing Summit. Plaintiff appeals from the trial court's entry of judgment for...
PER CURIAM . Defendants Western Culinary Institute, Ltd. and its parent company, Career Education Corporation, petition for reconsideration of our opinion in Gozzi v. Western Culinary Institute, Ltd., 276 Or.App. 1 , 366 P.3d 743 (2016). Specifically, defendants urge us to reconsider one sentence in the opinion to clarify whether we rejected their second assignment on the merits. We grant reconsideration and modify our opinion to delete the following sentence: "We reject without...
GARRETT , J. In another installment of a long-running dispute related to the closure of the Trojan nuclear power plant, petitioner seeks judicial review of an order of the Public Utility Commission (PUC) that granted respondent Portland General Electric's (PGE) request to amortize in its rates certain costs of issuing a refund to ratepayers. Petitioner challenges the PUC's order on several grounds, asserting that the order is unlawful because (1) charging ratepayers for administering the...
EGAN , J. Plaintiffs appeal a judgment dismissing a writ of garnishment that they served upon H & B Jewelry & Loan Company (H & B). H & B, a pawnbrokering business, loaned plaintiffs' debtor money, took a Rolex watch as collateral, and issued the debtor a pawn ticket. Plaintiffs obtained a writ of garnishment and sought to take possession of the watch after tendering the amount of the loan and the interest owed by the debtor. H & B moved to dismiss plaintiffs' writ of garnishment, arguing...
TOOKEY , J. Petitioner challenges the validity of a rule adopted by the Department of Corrections (DOC), OAR 291-124-0016(2), requiring the clinical director of DOC's Health Services to appoint the chief medical officer for each DOC institution. Petitioner also challenges the validity of DOC's "Health Policy and Procedure # P-A-02.1" (health policy), which purports to explain levels of health care services provided to inmates, as defined in OAR 291-124-0041. According to petitioner, the...
ARMSTRONG , P.J. Plaintiff Springville Corporation brought an action for legal malpractice against defendants Stoel Rives LLP and attorney James N. Westwood, 1 alleging, among other things, that Stoel Rives had given it erroneous legal advice about the need to appeal a limited judgment in a construction case in which Springville was the defendant. 2 See Interstate Roofing, Inc. v. Springville Corp., 347 Or. 144 , 218 P.3d 113 (2009) (describing the underlying case). The trial court...
PER CURIAM . Affirmed. DeLashmutt v. Parker Group Investments, LLC, 276 Or.App. 42 , 366 P.3d 769 (2016).
FLYNN , J. This case presents an appeal from judgments in actions that were consolidated below. It requires us to determine whether a borrower who has actual notice that his property is being sold at a trustee's sale under the Oregon Trust Deeds Act (OTDA), 1 is barred from later challenging the sale on the grounds that the entity that executed the sale was neither a validly appointed successor trustee nor the agent of a trustee. We conclude that a person's property interest under...
GARRETT , J. Plaintiff is a political committee that was organized to support the passage of a local ballot measure in Marion County in the May 2014 election. Defendants Deaton, Stormo, and Grant are individuals who placed a statement opposing the measure in the Marion County Voter Pamphlet. 1 Before the election, plaintiff brought suit under ORS 260.532, alleging that defendants violated that statute by knowingly or recklessly making a false statement of material fact in their voters'...
DUNCAN , P.J . In this forcible entry and detainer (FED) action, defendant appeals a judgment granting restitution of the premises to plaintiff. Defendant also appeals an order denying her motion to quash the subsequent writ of execution. She argues that the trial court erroneously granted restitution to plaintiff as a sanction for filing a late answer to the FED complaint and then compounded the error by denying her motion to quash execution while the restitution judgment had been stayed...
