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All Reporters → p2d → Volume 629

Opinions in p2d Volume 629

Opinion Did the trial court abuse its discretion in a dissolution action when it refused to order the immediate payment of a nonemployee spouse’s interest in a retirement benefit, where the employee spouse was eligible to retire and receive the benefit but had chosen not to do so? I. Vera and Earl Gillmore separated in 1978 after a marriage of 14 years. The trial court issued an interlocuto...
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Opinion Plaintiff challenges on constitutional grounds recent legislation (Bus. & Prof. Code, § 25602, subds. (b), (c); Civ. Code, § 1714, subds. (b), (c)) which is aimed at immunizing certain providers of alcoholic beverages from civil liability for injuries attributable to intoxication. We will sustain the subject legislation and the trial court’s dismissal of plaintiff’s complaint for ...
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I concur in the conclusion reached by the majority. A defendant is entitled to discovery prior to a preliminary examination and a magistrate has the authority to order it.1 It should not be forgotten that a defendant’s right to discovery is rooted in the Constitution. Due process requires a prosecutor to disclose all material evidence favorable to a defendant, including evidence related to guilt, ...
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Opinion Defendant Mark H. North pled guilty to second degree burglary (Pen. Code, §§ 459, 460; all further statutory references are to that code) following the trial court’s denial of his motion to suppress evidence (§ 1538.5) which had been discovered by the burglary victim in defendant’s automobile. In affirming the conviction, we will examine the propriety of the victim’s actions, and his st...
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Opinion May a trial court deny a motion to certify a class if the defendants are able to show there was antagonism to the lawsuit on be *466 half of some absent class members? A secondary issue centers on whether the plaintiffs’ prayer for rescission and punitive damages prevents the use of a class action suit. I. Tahoe Donner Subdivision is a recreational home site...
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OPINION On July 16, 1976, Wayne F. Putnam was indicted on charges of arson, burning with intent to defraud an insurer and obtaining money by false pretenses.1 Following a trial by jury he was convicted on all three charges. The court suspended the imposition of sentence for five years and placed Putnam on probation, on the special conditions that he serve 90 days in jail and pay $170,801.00 in res...
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OPINION Joseph Fields was convicted of fraud in the sale of securities. The questions on appeal are (1) whether a mistrial should have been granted because an unrelated criminal charge was referred to in the testimony of a witness, (2) whether the testimony of a witness should have been excluded because a statement of the witness was not revealed by the prosecution in advance of trial, and (3) whe...
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629 P.2d 54 (1981) Dennis Scott WILLIAMS, Appellant, v. STATE of Alaska, Appellee. No. 4078. Supreme Court of Alaska. May 29, 1981. *55 Richard B. Collins, Collins, Inc., P.C., Anchorage, for appellant. W.H. Hawley, Asst. Atty. Gen., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for appellee. Before RABINOWITZ, C.J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice. OPINION DIMON...
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OPINION Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and BLAIR, Superior Court Judge. This is the third time the parties in this case have appeared before this court. 1 The present issues on appeal concern the damages awarded J. R. Lewis. Specifically, appellant, Anchorage Asphalt, contends that the trial court erred in valuing Lewis’ damages as of the time o...
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OPINION Before RABINOWITZ, C. J., and CON-NOR, BURKE, MATTHEWS and COMPTON, JJ. This dispute is between one defendant (the Municipality of Anchorage, hereafter the Municipality) and one former defendant (Stephan & Sons, Inc., hereafter S&S) in a separate damages action brought by the mother of Walter DeHusson. The issue is whether S&S, a construction contractor, had a duty to defend ...
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OPINION The State of Alaska, through the Department of Commerce and Economic Development, provides low interest loans to small businesses that meet certain specified eligibility requirements. AS 45.95.010-.080. In the spring of 1978 Carl E. Jones, owner of a logging business known as Jones & Sons, Inc., applied for a loan under this program. On November 22, 1978, the State approved a loan...
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We granted the petition for review in this case for the limited purpose of addressing one issue in this appeal. The portions of the Court of Appeals opinion, 129 Ariz. 119, 629 P.2d 86, (1980), which discuss that issue, *117 and the holding, are vacated. The judgment of the trial court is affirmed. Rural/Metro Corporation is a privately owned corporation engaged in the business of providing f...
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OPINION The ultimate issue presented on this appeal is whether Rural/Metro Corporation, a private corporation furnishing fire protection services, is subjéct to regulation by the Arizona Corporation Commission. This litigation originated with the filing of a special action complaint in the Maricopa County Superior Court in which Rural/Metro sought an order prohibiting the appellant-Commission from...
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OPINION This is an appeal from the revocation of probation and sentencing of appellant. In 1975 when appellant was convicted of robbery with a prior felony conviction imposition of sentence was suspended and he was placed on probation for life, a disposition which was upheld on appeal. State v. Mendibles, 25 Ariz.App. 392, 543 P.2d 1149 (1975). He was also sentenced to prison for aggravated assaul...
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OPINION This is an appeal from the trial court’s order denying relief in a special action. The issue is whether appellants were provided with sufficient notice of an executive session of the school board held pursuant to A.R.S. Sec. 38-431.02(A)(2) of our Open Meeting Law. We shall consider the facts in the light most favorable to upholding the trial court. Appellants were certified probation...
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OPINION Appellant leased an apartment in its complex to appellees. A “soap and grab” fixture was installed in the tile wall by the tub in the bathroom of the unit. Appellee, Charles Shirkey, was injured when the fixture came out of the wall as he was using it to support himself in getting out of the tub. A jury was waived and the trial court awarded damages to appellees for the injuries sustained...
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OPINION Are the statutes governing the possession of “nunchakus” unconstitutionally vague? We hold that they are not and affirm. Appellant was arrested after the police found a “nunchaku” under the front seat of his vehicle. He was found guilty by the trial court, sitting without a jury, and placed on probation. A.R.S. Sec. 13-3102(A)(3) makes it a crime to possess “a prohibited weapon” whi...
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OPINION This is an appeal by the state from a final judgment of the superior court in a special action. The real party in interest, Keith, is charged with a misdemeanor over which the city court has jurisdiction. Keith moved to depose a police officer who is a material witness. The police officer was willing to be interviewed by Keith’s counsel but refused to allow the interview to be tape-recorde...
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Defendant Kerns appeals the trial court’s denial of his motion to reduce sentence. He also asserts in this appeal that he is entitled to be resentenced in conformity with the amendatory legislation of H.B. 1589. We affirm. The defendant was charged with possession of cocaine, section 12-22-302, C.R.S. 1973 (1978 Repl. Vol. 5), sale of cocaine, section 12-22-302, C.R.S.1973 (1978 Repl. Vol. 5), pos...
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Charges of unprofessional conduct in violation of C.R.C.P. 241(B) were lodged with the Supreme Court Grievance Committee against the respondent, T. Michael Dutton, who was admitted to practice law on October 6, 1970. Personal service of the citation and complaint, as provided in C.R.C.P. 247(B) could not be obtained on the respondent as he had apparently moved his residence from the state of Color...
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On May 27,1981, this Court issued an Order immediately disbarring John Henry Cashman, Jr. (Respondent), from the practice of law. That Order stated that an opinion would thereafter be filed. This opinion is in accordance with that Order. The instant matter comes before this Court upon disciplinary proceedings instituted pursuant to Rule 16.13 (Attorneys Convicted of Crimes), Rules of the Suprem...
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*390 OPINION OF THE COURT BY The primary issue on this appeal is whether HRS § 297-15 (1976) which mandates the retirement of public school teachers at age 65 violates the equal protection and due process clauses of the Hawaii Constitution, art. I, § 4 (as amended and renumbered art. I, § 5 (1978) ). 1 The First Circuit Court upheld the constitutionality of *391...
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*207 OPINION OF THE COURT BY Defendants interlocutorily appeal the lower court’s Order Denying Motion to Dismiss Derivative Action and for Summary Judgment. The issue is whether the lower court correctly ruled that two limited partners may maintain a derivative action in favor of the limited partnership against the limited partnership, the two general partners, and one limit...
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OPINION OF THE COURT BY This case involves the condemnation of a parcel of land for use as a street extension. In the court below, both sides filed motions for summary judgment posing the single issue of whether or not the parcel in question had been impliedly dedicated as a street by the owners’ action and should therefore be considered to have nominal value only in the condemnation proceedings....
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This is an appeal from a decision and order of the Labor and Industrial Relations Appeals Board which affirmed a ruling by the director that the claim was not barred by the statute of limitations contained in the Workmen’s Compensation Act. The director had not determined the amount of compensation and the appeals board, in its order, sent the case back to the director for a determination of th...
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629 P.2d 127 (1980) 102 Idaho 235 Lillian A. OVERMAN, Plaintiff-Appellant, v. Steven G. OVERMAN, Defendant-Respondent. No. 13337. Supreme Court of Idaho. December 22, 1980. Dissenting Opinion January 29, 1981. *128 Ismael Chavez, Caldwell, for plaintiff-appellant. Gary H. Lew, Caldwell, for defendant-respondent. BAKES, Justice. Plaintiff appellant Lillian Overman obtained a default judgment of di...
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The defendant appeals from the denial of his motion to reduce sentence. On August 11,1979, the defendant, while driving under the influence of alcohol, crossed the center line of the roadway and collided with a vehicle driven by Harvey Thornton, who died as a result of the collision. The defendant was charged with involuntary manslaughter, and he pleaded guilty. A presentence investigation was con...
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The opinion of the court was delivered by This is an appeal by J. L. Redmond (defendant-appellant), the husband in a divorce action, contesting the trial court’s division of property, and award of attorney fees to B. J. Redmond (plaintiff-appellee). This court granted the husband’s petition for review of the Court of Appeals unpublished opinion which affirmed the trial court. On appeal the hu...
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229 Kan. 567 (1981) 629 P.2d 143 FRED MITCHELSON, Executor of the Estate of Thad M. Sandstrom, Deceased; and MILDA J. SANDSTROM, Appellants, v. TRAVELERS INSURANCE COMPANY, Appellee. No. 52,258 Supreme Court of Kansas. Opinion filed June 10, 1981. Michael W. Merriam, of Colmery, McClure, Funk, Letourneau & Entz, of Topeka, argued the cause and was on the brief for the appellant. Philip H. Lew...
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The opinion of the court was delivered by Manuel L. Rubin appeals from a judgment of the district court which denied resumption of long-term disability payments under the Kansas Public Employees Retirement System (KPERS), K.S.A. 74-4901 et seq. (Weeks). After receiving disability payments due to a mental or nervous condition for two years the payments were terminated. Rubin sued KPERS and the Stat...
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The opinion of the court was delivered by The sole issue herein is whether the trial court erred in concluding the defendant board of county commissioners, sitting as a board of equalization, acted arbitrarily and capriciously in rescinding its previous order which had reduced the assessed valuation of all personal property by 23%. The facts need to be set forth in some detail. On Ma...
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The opinion of the court was delivered by Sam L. Loughmiller, Jr., executor of the estate of Owen C. Loughmiller, deceased, appeals from a trial court decision holding Peggy L. Loughmiller was legally married to the deceased and that the property settlement agreement between Peggy and Owen was not a valid consent to the will and failed as a post-nuptial agreement. The facts are undis...
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The opinion of the court was delivered by This is an action to quiet title to certain real estate located on the Kansas River and for an accounting for rents and profits received from the property in past years. The action was brought by the plaintiff-appellant, Kaw Drainage District, against the defendants, Arthur Attwood and Marvin Hansford, who, along with their predecessors, had been farming t...
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229 Kan. 600 (1981) 629 P.2d 167 STATE OF KANSAS, Appellee, v. DANNY R. ROUSE, Appellant. No. 52,401 Supreme Court of Kansas. Opinion filed June 10, 1981. Harry L. Eddy, of Wichita, argued the cause and was on the brief for the appellant. Beverly Dempsey, assistant district attorney, argued the cause, and Robert T. Stephan, attorney general, and Clark V. Owens, district attorney, were with her on...
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The opinion of the court was delivered by John H. Folkerts appeals from his conviction by a jury of aggravated kidnapping (K.S.A. 21-3421), rape (K.S.A. 1980 Supp. 21-3502), and aggravated sodomy (K.S.A. 21-3506). In the early morning hours of March 16, 1979, Dana Bennett *609 was accosted by a white male in the parking lot of the Fireside Lounge in Wichita. The man held a knife to her thro...
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The opinion of the court was delivered by Defendant-appellant, Louis E. Jones, was convicted by a jury of second degree murder and of unlawful possession of a firearm after conviction of a felony. On appeal the defendant argues that the trial court erred in refusing to instruct on self-defense as related to the charge of unlawful possession of a firearm (K.S.A. 21-4204[b]). The two conviction...
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The opinion of the court was delivered by This is an appeal by plaintiff Personal Thrift Plan of Wichita, Inc., from an order of the district court upholding a decision of the State Board of Tax Appeals finding that plaintiff was responsible for collecting sales taxes when it sold repossessed personal property to consumers. The case was submitted to the trial court on the following stipulation of ...
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The opinion of the court was delivered by The Kansas State Board of Healing Arts revoked the license of Robert M. Dickerson, M.D. The trial court dismissed Dickerson’s appeal for lack of jurisdiction. Dickerson appeals. The issues on appeal are solely procedural. The relevant events are as follows: May 5, 1980: The petition was filed before the State Board to revoke Dickerson’s license. J...
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The opinion of the court was delivered by Mesa Petroleum Company (Mesa) filed this action for a declaratory judgment asking the trial court to determine that it legally terminated a gas supply contract with the defendant, The Kansas Power and Light Company (KP&L). The question of whether the contract was legally terminated depends on an interpretation of Section 105 (b) (1) of the Natural...
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6 Kan. App. 2d 346 (1981) 629 P.2d 196 UNIFIED SCHOOL DISTRICT No. 490, BUTLER COUNTY, KANSAS, Plaintiff-Appellee, v. THE CELOTEX CORPORATION, Defendant-Appellant, and SUNFLOWER ROOFING AND INDUSTRIES, INC., Defendant-Appellee. No. 51,030 Court of Appeals of Kansas. Opinion filed May 29, 1981. Petition for review denied July 16, 1981. John D. Jones, of Greene, Buckley, DeRieux & Jones, of Atl...
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delivered the opinion of the Court. John Skierka (defendant John) and Bernice Skierka (defendant Bernice), husband and wife, and defendant Skierka Brothers, Inc. (corporation), a close-held family corporation, appeal from the judgment of the District Court of the Twelfth Judicial District, Liberty County, the Honorable B. W. Thomas, presiding. After *507 trial without a jury, the District Cou...
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delivered the opinion of the Court. Defendant appeals the sentence imposed by the Sweet Grass County District Court following his conviction of aggravated assault. A jury trial was held on March 10, 1980. The court sentenced defendant on March 17, 1980, to fifteen years imprison *523 ment with five years suspended. He raises two issues challenging the legality of his sentence. First, defend...
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delivered the opinion of the Court. This is an appeal from the District Court of the Eighth Judicial District of the State of Montana, in and for the County of Cascade. Appellant, T & W Construction, sued on contract for the performance of street construction in the Town of Cascade. Respondent, the Town of Cascade, counterclaimed alleging that appellant breached the contract and failed to fully pe...
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OPINION Respondent Donald Dobson is employed by Exber, Inc., dba El Cortez Hotel and Casino. Donald participates in the El Cortez Hotel and Casino Profit Sharing Retirement Plan of which appellant is the trustee. At the time pertinent to this case, Donald’s portion of the profit sharing retirement plan totaled $107,000. According to the terms of the profit sharing retirement plan, Donald is not...
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OPINION This is an appeal from a default judgment entered against General Atomic Company (GAC) in Santa Fe District Court for its alleged willful and bad faith failure to comply with the court’s discovery orders. 1 This case is by far the single largest litigation in the history of New Mexico, both in terms of the dollar value of the judgment, which approaches one billion dol...
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OPINION At the request of the Attorney General we issued an alternative writ of superintending control in this cause. We also ordered a stay on all present proceedings involving the discovery of material in the possession of the Attorney General relating to the 1980 Penitentiary of New Mexico riot. We have determined that the action by this Court on the writ of superintending control is premature...
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OPINION Chischilly, a Navajo Indian, brought suit in District Court in Bernalillo County against General Motors Acceptance Corporation (hereafter, GMAC) for damages for unlawful repossession of a truck. He had purchased the truck from Schultz Buick on August 18, 1976, on a retail installment contract. GMAC financed the transaction and obtained a security interest in the truck. On two 'occasions o...
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OPINION This case was the companion, on certiorari, of Hooton-Doe v. City of Albuquerque, Nos. 13,227 and 13,228, consolidated, also decided today. Earlier Court of Appeals decisions in all of these cases were reversed by the Supreme Court on the issue of liability of law enforcement officers under the Tort Claims Act for negligence in the performance of their duties. See Methola v. Count...
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Richard Thomas Yery brings this appeal from a judgment of the District Court of Oklahoma County, the Honorable Homer Smith, presiding, dated November 28, 1978. This appealed order awarded judgment against Mr. Yery for unpaid child support from September 1976 to October, 1978 in the amount of $15,600.00, in addition to an arrearage of $10,400.00 for alimony due and unpaid on a principal judgment o...
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MEMORANDUM DECISION BY ORDER On Certiorari to this Court from the opinion of the Court of Appeals, Div. No. 1, applicant Landrum urges, inter alia, the trial court was without jurisdiction to make an order for child support in an action commenced in habeas corpus, and points out a direct conflict in Oklahoma on this question between Ex parte Kelly, Okl., 261 P.2d 452 (1963), and Ex parte Yah...
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The petitioner (Evinger) and his dealings with the respondent (Board) have a long history dating to July 1978, when he was granted a temporary license to practice law. I — History In the Fall of 1978 the Board, through powers granted it in Rule 11 of the Rules Governing Admission to Practice Law in the State of Oklahoma,1 conducted an investigation into Evinger’s qualifications to become a member ...
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OPINION The appellant was convicted of Armed Robbery in Tulsa County District Court Case No. CRF-77-3478. Punishment was fixed at five (5) years’ imprisonment. Six allegations of error are alleged, one of which contains sufficient merit to re *369 quire reversal. Although defense counsel failed to object to the numerous instances of prosecutorial misconduct, we conclude that their combined ...
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OPINION Appellant, Verdell Miller, was charged, tried by jury and convicted of Rape in the First Degree, After Former Conviction of Felony, in Muskogee County District Court Case No. CFR-78-245, and sentenced to sixty (60) years’ imprisonment. The charge arose from the repeated rape and sodomizing of a Muskogee woman by armed intruders in her home during the early morning hours of July 8, 1978....
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MEMORANDUM OPINION The appellant was found guilty in the Municipal Court of the City of Hooker, Oklahoma, of a Failure to Yield Ordinance, case no. 8099. On appeal to the District Court of Texas County, Oklahoma, judgment and sentence of a twenty dollar ($20.00) fine was imposed, their case no. CRM-79-31. An appeal from that judgment and sentence has been lodged in this Court in accordance with La...
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629 P.2d 373 (1981) 52 Or.App. 369 OREGON STATE BOARD OF HIGHER EDUCATION, for and On Behalf of the UNIVERSITY OF OREGON HEALTH SCIENCES CENTER, Appellant, v. WASHINGTON COUNTY, Oregon; Warren B. Barnes, Washington County Sheriff; and the City of Beaverton, Oregon, Respondents. No. 39-692; CA 18604. Court of Appeals of Oregon. Argued and Submitted January 14, 1981. Decided May 26, 1981. Reconside...
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629 P.2d 377 (1981) 52 Or.App. 357 ROGUE VALLEY MEMORIAL HOSPITAL, an Oregon Non-Profit corporation, Appellant, v. JACKSON COUNTY, Oregon and Duane Franklin, Jackson County Sheriff, Respondents. No. 78-2666-L-2; CA 17815. Court of Appeals of Oregon. Argued and Submitted January 14, 1981. Decided May 26, 1981. Reconsideration Denied July 1, 1981. Review Denied July 21, 1981. *378 Karen C. Allan, M...
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This is a companion case to Cooper v. OSAA, 52 Or App 425, 629 P2d 386 (1981). Although the facts are somewhat different, it presents the same question: Does the Oregon School Activities Association (OSAA) transfer rule violate any of plaintiffs state or federal constitutional rights? 1 Plaintiff, Colby Whipple, attended Catlin Gabel, a private school, during the 1977-1978 school year and p...
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These are consolidated suits for declaratory and injunctive relief in which plaintiffs seek declarations that they are eligible to participate in interscholastic sports competition in their respective high schools and injunctions against enforcement of an Oregon School Activities Association (OSAA) rule that bars them from participating in such competition for one year following their transfer fro...
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The husband appeals from that portion of the decree of dissolution dividing the property of the parties. On cross-appeal, the wife also challenges the property division and argues the trial court should have awarded her spousal support and a greater sum in payment of her litigation expenses. The parties were married in 1953 and separated in 1977. At the time of the dissolution, husband was...
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On October 1, 1975, plaintiff was driving a 1971 Chevrolet pickup truck with a cab-over camper when the truck went out of control, overturned and caught fire. Plaintiff suffered serious burns over 55 percent of her body and brought this products liability action to recover damages for her injuries. Her complaint was filed on July 21, 1977, naming General Motors Corporation, Friendly Chevrolet C...
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Defendant appeals her conviction for Driving Under the Influence of Intoxicants. ORS 487.540. She contends that the trial court erred in denying her motion to suppress evidence of her refusal to take a breathalyzer test, arguing that the admission of that evidence violated her Sixth Amendment right to counsel and her Fifth Amendment right against self-incrimination. We conclude that the evidence ...
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This was a proceeding brought by appellant (hereafter "father”), a child support obligor, against respondent (hereafter "mother”), seeking (1) a declaration that the parties’ two daughters had become emancipated and (2) relief from his support obligation for each child since the date she became emancipated.1 The trial court found that the parties’ oldest daughter was emancipated and therefore term...
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In this dissolution of marriage case we affirm the trial court in all respects except a provision in the decree relating to the disposition of certain real property in which wife’s mother resides. The parties bought the property in question in 1956. In 1958 the wife’s parents moved into the house and agreed to make the mortgage payments and to maintain the property in exchange for their living on ...
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Defendant appeals his conviction for possession of a controlled substance, assigning as error, first, the court’s denial of defendant’s motion to suppress evidence, and, second, the court’s consideration, in imposing sentence, of defendant’s decision to stand trial rather than enter a plea. As to the suppression issue we have considered only the facts presented at the suppression hearing. Witho...
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This is an appeal from a judgment of foreclosure of a real estate second mortgage for failure of the defendants to make payments as agreed to in a promissory note secured by the second mortgage. The judgment is affirmed with no costs awarded. The defendants were several months in arrears on a superior first mortgage and also on the second mortgage, which latter is the basis for this litigation and...
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This is a disciplinary action in which the appellant appeals to this Court from the findings and recommendations of a hearing panel and the Board of Commissioners of the Utah State Bar, which recommended that the appellant be suspended from the practice of law in the State of Utah for a period of two months, and that appellant reimburse the Utah State Bar for costs incurred in the disciplinary pro...
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Plaintiff initiated this proceeding pursuant to an order to show cause to enforce a provision in a decree of divorce entered in November, 1968. Thereunder, defendant was ordered “to pay any medical or dental expenses which may be incurred for medical or dental care of the two minor daughters of the parties.” Upon hearing before the trial court, plaintiff was awarded judgment in the sum of $1,184.2...
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This controversy began as a wrongful death action by the widow and surviving children of an employee killed in an explosion of equipment designed, manufactured and supplied by the defendant, who was decedent’s employer. The action was commenced in the United States District Court for the District of Utah, Central Division, under that court’s diversity jurisdiction. Defendant moved to dismiss on t...
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629 P.2d 432 (1981) Bette JOHNSON, as guardian ad litem for the minor child, Ja Nae Johnson, Plaintiff and Appellant, v. SALT LAKE CITY CORPORATION, Defendant and Respondent. No. 16415. Supreme Court of Utah. May 1, 1981. John Walsh, Salt Lake City, for plaintiff and appellant. Roger F. Cutler, Greg R. Hawkins, Salt Lake City, for defendant and respondent. OAKS, Justice: This case represents the ...
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629 P.2d 435 (1981) In re C. DeMont JUDD Jr., Disciplinary Proceeding. No. 16938. Supreme Court of Utah. May 5, 1981. *436 C. DeMont Judd, Jr., pro se. S. Dee Long, Salt Lake City, for respondent. CROFT, District Judge: This case is before this Court for review of the recommendation of the Board of Commissioners of the Utah State Bar that C. DeMont Judd, Jr., (hereinafter "appellant") be suspende...
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Defendant appeals a jury verdict and judgment which found him guilty of the crime of unlawful distribution for value of a controlled substance.1 Trial was held on January 15 and 16, 1980. The state first called as a witness Officer James Burns of the Salt Lake City Police Department. Burns testified that he worked with narcotics investigations in the Special Investigations Division of the Departme...
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In this action by the record owner to quiet title to a strip of real property, the defendants, who were apparently in possession, claimed the property under the doctrine of boundary by acquiescence. The trial court rejected that defense and quieted title in the plaintiff, subject to an equitable obligation to reimburse defendants for the fair value of their improvements on the disputed property, ...
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This case concerns a postdissolution proceeding for enforcement of the child support provisions of an original dissolution decree. The Court of Appeals held the decree did not provide for child support payments after the child attained the age of majority. Mrs. Gimlett petitioned this court for review. We affirm. The marriage of David and Judy Gimlett was dissolved by a decree entered in J...
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David Whatmore appeals from a superior court judgment permitting the construction of a bank with drive-in banking facilities near his home. The sole issue *502before us is whether drive-in banking facilities are authorized by the Seattle zoning code at this particular site. We hold that they are not permitted. Seattle-First National Bank (SeaFirst) proposed in 1974 to construct a new banking facil...
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Defendant Douglas Justice appeals his conviction for being a prisoner in possession of a weapon. The sole issue is whether the trial court erred in failing to suppress a knife found in a Kleenex box during a routine search of defendant's cell at the Washington State Penitentiary. The reasonableness of a routine prison search, i.e., one conducted without probable cause or even a suspicion, must be ...
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Donald Bruce Geer (Bruce Geer), personal representative of the decedent, Donald E. Geer's separate estate, appeals a judgment in favor of Joanne C. Geer as personal representative of the decedent's community estate. He assigns error to the court's granting Mrs. Geer's petition to rescind an agreement settling her claims to the estate and ordering distribution of the estate pursuant to the intes...
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Facts of Case The defendant, Johnny T. Mulder, appeals from the judgment and sentence entered following a jury verdict finding him guilty of second degree felony-murder. From the limited record filed in this court, it appears that William Matthew Bowman, age 5, had been living with the defendant and his wife for 4 months prior to his death. The defendant was the child's godfather. On ...
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The Yalowizers 1 , appellants, as plaintiffs, filed in the district court a complaint against the Husky Oil Company, appellee, as defendant, alleging personal injuries and property damage caused by negligence of the appellee. Following discovery and a pretrial conference, appellee moved for summary judgment. After briefing for and argument to the court, it granted summary judgment fo...
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629 P.2d 470 (1981) In the Matter of the ESTATE of Alfred B. WATERS. Valda WATERS, Appellant (Proponent), v. Janet C. HOLKAN, et al., Appellees (Contestants). No. 5429. Supreme Court of Wyoming. June 11, 1981. *471 Bryan Sharratt, Wheatland, and Sue Davidson, Cheyenne, of Urbigkit & Whitehead, P.C., signed the brief of appellant. Mr. Sharratt appeared in oral argument for appellant. James W. ...
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629 P.2d 481 (1981) David SLAUGHTER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). No. 5439. Supreme Court of Wyoming. June 12, 1981. Michael H. Schilling, Appellate Counsel, Wyoming Public Defender Program, and Sylvia Lee Hackl, Asst. Public Defender, Wyoming Public Defender Program, signed the brief on behalf of appellant. Sylvia Lee Hackl, Cheyenne, appeared in oral arg...
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*494Opinion It is a fundamental canon of criminal law, and a foundation of due process, that “A person cannot be tried or adjudged to punishment while such person is mentally incompetent.” (Pen. Code, § 1367; Pate v. Robinson (1966) 383 U.S. 375, 378 [15 L.Ed.2d 815, 818, 86 S.Ct. 836]; People v. Laudermilk (1967) 67 Cal.2d 272, 282 [61 Cal.Rptr. 644, 431 P.2d 228]; People v. Pennington (1967) 66 ...
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Opinion In this writ proceeding, petitioners, defendants in the underlying action (hereafter defendants), seek review of a trial court order denying their pretrial motion to expunge a notice of lis pendens pursuant to Code of Civil Procedure section 409.1. 1 Defendants contend that the trial court applied the wrong legal standard in passing upon their motion to expunge, and assert that on the...
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29 Cal.3d 574 (1981) 629 P.2d 502 174 Cal. Rptr. 701 ANTONIO MICHAEL MARTINEZ, Petitioner, v. THE SUPERIOR COURT OF PLACER COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. S.F. 24226. Supreme Court of California. June 18, 1981. *576 COUNSEL Blackmon, Wasserman & Blicker and Clyde M. Blackmon for Petitioner. Quin Denvir, State Public Defender, as Amicus Curiae on behalf of Pe...
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629 P.2d 512 (1981) ALYESKA PIPELINE SERVICE COMPANY, Appellant, Cross-Appellee, v. Whitten H. ANDERSON and Ronald R. Thomas, Appellees, Cross-Appellants. Nos. 4536, 4539. Supreme Court of Alaska. June 5, 1981. *516 Charles P. Flynn and Nelson G. Page, Burr, Pease & Kurtz, Inc., Anchorage, for appellant, cross-appellee. Charles D. Silvey, Jr., Merdes, Schaible, Staley & DeLisio, Inc., Fai...
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ORDER IT IS ORDERED, su a sponte: This petition for bail review is dismissed as moot. RABINOWITZ, C. J., dissents from this order for the reasons stated in the attached dissenting opinion....
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OPINION This appeal presents a dispute between the heirs of Charles D. Brower, who died testate on February 11, 1945, and was survived by fourteen children. Appellants are the heirs living outside Alaska. They challenge the superior court’s determination of their rights and interests in a parcel of land known as U. S. Survey 1432, located at Barrow, Alaska. Charles Brower’s will and codic...
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*544 OPINION This lawsuit is based on a homeowner’s insurance policy issued by Great American Insurance Company to Roy and Joan Hock-enbury, the parents of Tim Hockenbury. The facts underlying the claim against Great American are not in dispute. During June and the first few days of July of 1978, Tim Hockenbury was residing temporarily with his parents while he looked for su...
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OPINION On November 20, 1978, at approximately 8:30 a. m., three men robbed McMahan’s Furniture Store in Anchorage at gunpoint. One of the robbers, George Miller, a former employee at McMahan’s, confessed and identified his brother, Rene Miller, and Wilton Toney as his accomplices. George and his girlfriend, Chere Wilson, testified before the grand jury. By previous agreement, they concealed ...
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OPINION The issue in this case is whether an Illinois judgment is entitled to full faith and credit in the Arizona courts. We hold that it is and affirm. Appellee, an Illinois professional corporation, filed a verified complaint for an account stated in the Circuit Court of Cook County, Illinois, on August 11, 1977. Appellants were served personally in Arizona on August 16, 1977. In response to th...
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OPINION This is an appeal from a judgment in favor of defendant/appellee on both the complaint and counterclaim in a contract action. The contract was a May, 1976 agreement to lease a store of a specific size to be built in accordance with the specifications of the lessee for the interior in a shopping center of a certain size. Appellant initiated this suit for damages for an alleged...
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OPINION In this appeal we are asked to review a summary judgment determination that the statute of limitations begins to run on a claim for damages against a lawyer for malpractice of law at the time of the negligent act rather than at the time of its discovery. We have determined that the time of discovery is the critical point and therefore reverse. The facts are briefly stated. On...
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OPINION Pursuant to A.R.S. § 33-551, et seq. a horizontal property regime (condominium) was created. Appellee is the non-profit corporation formed to serve as the Council of Co-owners for the condominium. Appellants are the owners of two individual units therein. This action was commenced by appellee to recover assessments and penalties from appellants. A counterclaim was then filed ...
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OPINION Appellant (Sears) appeals from a $30,000 judgment entered on a jury verdict against it in this personal injury lawsuit. On August 18,1976, appellee and his son, David, went to Sears to purchase saber saw blades and to obtain a large cardboard box for David to play in. After buying the saw blades, appellee asked a Sears employee if he could get an empty cardboard box. He was directed t...
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The defendant, Edward S. Adler, was convicted of felony theft by receiving, section 18-4-410, C.R.S.1973 (1978 Repl. Vol. 8), 1 in connection with his purchase of a stereo receiver from an undercover policeman. He appealed from that conviction, raising issues concerning a variance between the date of the offense stated in the direct criminal information and the date proved at trial; the judge’s...
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Defendant Cabral appeals the trial court’s disposition of his motion for reconsideration of his sentence, and his request to be resentenced under the amendatory sentencing legislation of H.B. 1589. We affirm the judgment of the trial court. The defendant was charged with several counts of aggravated robbery, section 18^-302, C.R.S. 1973 (1978 Repl.Vol. 8), crime of violence, section 16-11-309, C.R...
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We granted certiorari to review a judgment of the district court of Huerfano County reversing a county court conviction for driving while license denied, as proscribed by section 42-2-130(l)(a), C.R.S. 1973 (1980 Supp.). Pursuant to the implied consent statute, section 42-4-1202(3)(e), C.R.S.1973 (1980 Supp.), the Motor Vehicle Division, Department of Revenue (department), entered a three month...
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Christopher H. Kaiser, the petitioner, commenced this action to recover $20,000 paid as earnest money on a contract to purchase a residence in Vail, Colorado, owned by David L. Wright. Wright, and Chaplin & Company, the real estate broker which held the $20,000 deposit, were named as defendants. We granted certiorari to review the decision of the court of appeals affirming the trial court’s jud...
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The defendant-appellant, Kenneth Bot-ham, Jr., was charged with the first-degree murders of his wife, Patricia Botham, his neighbor, Linda Miracle, and her two sons, Chad and Troy Miracle. A jury found the defendant guilty of first-degree murder of Patricia Botham, and also returned verdicts finding the defendant guilty of three counts of second-degree murder for the deaths of Linda, Chad, and Tr...
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In this original proceeding, the petitioners request a writ of prohibition directing the respondent district court to grant them leave to withdraw as attorneys of record for a defendant in a pending criminal case. We issued a rule to show cause, and .now make that rule absolute. Criminal charges against the petitioners’ client, Joseph Holness, have been pending before the respondent district court...
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629 P.2d 605 (1981) The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF ADAMS, State of Colorado; Peter M. Mirelez, John Campbell and James Covey, as members of the Board of County Commissioners of the County of Adams, State of Colorado; David Berger; Warren A. Moreau; Harry Fukaye; James Fukaye; Isamu Fukaye and Henderson Associates, Ltd., a Limited Partnership; Adams County Planning Commission; ...
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We granted certiorari to review the decision of the district court of Arapahoe County affirming the county court’s dismissal of charges of driving under the influence of intoxicating liquor, section 42-4-1202(l)(a), C.R.S.1973, separately brought against three defendants. In each case the county court found that the arresting officer advised the defendant of his or her rights under the implied co...
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The City of Montrose (City) appeals from a judgment of the district court affirming an order of the Public Utilities Commission (PUC, or Commission) concerning the manner in which municipal franchise charges are passed along to the customers of Rocky Mountain Natural Gas Company (Rocky Mountain). Municipal franchise charges are sums paid to a municipality by utilities such as Rocky Mountai...
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*406 OPINION OF THE COURT BY On March 19, 1979, appellants Carlos A. Herrera and Arthur Cummins, III, were jointly tried for rape in the first degree (§ 707-730(l)(a)(i), Hawaii Revised Statutes (HRS)), sodomy in the first degree (§ 707-733(l)(a)(i), HRS) and robbery in the first degree (§ 708-840(l)(b)(ii), HRS) in the circuit court of the first judicial circuit and were convict...
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Several questions are raised by appellant Kenneth Lono in this appeal which resulted from a circuit court order denying appellant’s petition for post-conviction relief under Rule 40, Hawaii Rules of Penal Procedure. *471 Appellant’s petition had requested the circuit court to set aside his pleas of guilty made in 1965 to two counts of murder for which he was given a mandatory sentence of life...
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Appeal' is taken from an order granting summary judgment to the appellees in an action brought for injunctive relief. Appellants raise the issue of whether in this action, summary judgment was appropriately granted. However, appellees raise the issue of this court’s jurisdiction. Concluding that we lack jurisdiction, we dismiss the appeal. Briefly, the facts reveal the following: The ...
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OPINION OF THE COURT BY This is an appeal from the trial court’s order granting defendants-appellees’ motion for summary judgment. Plaintiffs-Appellants (hereinafter plaintiffs or the Kajiyas) argue that the issues of material fact presented below were sufficient to preclude the summary judgment. We agree. Three questions are presented to us for determination: (1) *222 W...
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OPINION OF THE COURT BY Appeal is taken from that portion of the order granting injunctive relief to Lhe appellee, Hawaiian Electric Company (HECO), which prohibits the appellants from obstructing the right of way with parked laundry trucks between the hours of midnight and 6:00 a.m. The issue is whether the court, in fashioning the grant of injunctive relief, failed to conserve the equities of th...
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The facts of this case require us to sua sponte address the issue whether we have jurisdiction. In addressing this issue, we will make the kind of factual analysis that an attorney contemplating appeal must make in deciding when to file his or her notice of appeal. The applicable legal considerations are stated in Sturkie v. Han, 2 Haw. App. 140, 627 P.2d 296 (1981); ...
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dissenting. I do not find it necessary to engage in a debate which is largely centered around attempting to determine when solicitation leaves off and attempt takes over, or to distinguish between overt acts and slightly overt acts, or to find the line of demarcation between perpetration and preparation. Not too long ago the Court wrestled with the Lindquist and Creech cases.1 Lindquist was a cont...
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Plaintiff-respondent James R. Rickel (hereinafter Rickel) sat for the apprentice barber examination given by defendant-appellant, the Board of Barber Examiners, State of Idaho (hereinafter Board). Rickel passed the written portion but failed the practical portion of the exam due to an attack of severe chest pain. Without a hearing, the Board denied extension of Rickel’s permit to practice and r...
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This appeal is the sequel to the case of Clark v. Sage, 95 Idaho 79, 502 P.2d 323 (1972). The facts initially giving rise to this appeal are set out and discussed with considerable particularity therein. The primary issue before the court in this appeal is whether the Industrial Commission erred in departing from its prior approval of a contingent fee agreement entered into between claimant-app...
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This is an appeal from a district court summary judgment in favor of respondents *267 in an action brought by appellants in which they sought statutory penalties and other appropriate relief from an alleged usurious loan. On April 26, 1976, appellants Jerry and Valene Walker, husband and wife, executed an agreement with respondent Nationwide Financial Corporation for a loan of $15,-537.64. Th...
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Claimant-appellant Robert Albright, who is 60 years old and has worked most of his life as a carpenter and construction worker, suffered a back injury while performing carpentry work for MGM Construction, Inc., on May 15, 1976. Five days after the accident he saw Dr. Petersen, who diagnosed the injury as a mild compression fracture and lumbosacral strain. Albright stopped working two days later wh...
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629 P.2d 667 (1981) 102 Idaho 271 Ben REEVES and Alberta Reeves, husband and wife, Plaintiffs-Respondents, v. Jimmy Joe WISENOR, Defendant-Appellant. No. 13571. Supreme Court of Idaho. May 5, 1981. Rehearing Denied June 23, 1981. *668 Daniel Mark Johnson of Strom, Longeteig & Johnson, Craigmont, for defendant-appellant. Dennis L. Albers and Gregory FitzMaurice, Grangeville, for plaintiffs-res...
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This is an appeal by Utah Power & Light Company from an order of the Public Utilities Commission setting rates to be charged Idaho customers for electric power delivered by Utah Power. We set aside the order of the Commission. Utah Power is a public utility providing electrical energy to consumers in Utah, Idaho and Wyoming. Idaho consumers account for approximately 19% of Utah Power’s total sales...
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Appellant Roger Cox and respondent Shirley Cox Chislett were divorced February 2, 1976. Custody of their four minor children, one of whom now has reached the age of majority, was awarded to respondent upon stipulation of the parties. This appeal is from a denial of appellant’s motion to modify the custody provision of the divorce decree. Appellant is an attorney and is remarried. Respondent, curre...
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Defendant was charged with and pleaded guilty to two counts of lewd conduct with a child under sixteen. I.C. § 18-6607. The charges stemmed from defendant’s conduct with his twelve year old daughter. A presentence investigation was provided to the sentencing court. After a hearing, the court sentenced defendant to ten years imprisonment on each count, to be served concurrently. In passing upon ...
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Defendants-appellants Shoshone County Sheriff’s Office and State Insurance Fund appeal an award by the Idaho Industrial Commission of total permanent disability benefits to Mr. Robert L. Curtis and a dismissal of Mr. Curtis’ claim against the Idaho Industrial Special Indemnity Fund. Defendants-appellants seek to have the matter remanded to the Industrial Commission for further proceedings to de...
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This is an appeal by the State of Idaho from a district court’s granting of defend*308ant’s Motion to Dismiss the charge of unlawful delivery of a controlled substance, marijuana, in violation of I.C. § 37-2732. The Motion to Dismiss was granted on the ground that the defendant was denied his constitutional right to a speedy trial. We reverse and remand. An undercover detective alleges that on Apr...
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This is a disciplinary proceeding against Robert R. Freeman, a Kansas attorney. Respondent filed exceptions to the report of the Kansas Board for Discipline of Attorneys which recommended Freeman be indefinitely suspended from the practice of law for violation of DR 1-102(A)(4) and (6) and DR 9-102(B)(3) and (4). The facts are undisputed. Sheila D. Hoffner is a school teacher and a resident of ...
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This is an insurance case that involves first-party claims by an insured against two insurance carriers for recovery of personal injury protection (PIP) benefits. We are being asked to determine contract rights and, in so doing, to also interpret the Kansas Automobile Injury Reparations Act, K.S.A. 1980 Supp. 40-3101 et seq. On September 20, 1977, James E. Bradley died as the resul...
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Plaintiff appeals from a judgment entered by the district court following a trial on the merits. The action was a sequel of sorts to the Carpenter murder cases which have been before the Supreme Court on three separate occasions. (State v. Carpenter, 215 Kan. 573, 527 P.2d 1333 [1974]; Carpenter v. State, 223 Kan. 523, 575 P.2d 26 [1978]; State v. Carpenter, 228...
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This is an appeal by the defendant, Carl D. Coffman, from a summary judgment entered against him in the amount of $1,387 in a proceeding under the Uniform Reciprocal Enforcement of Support Act (URESA), K.S.A. 23-451 et seq. Defendant’s complaint is that the trial court erred in granting summary judgment in favor of plaintiffs, Loretta Mossburg and the State of Utah, and against Mr. Coffman, b...
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This is a direct appeal by the defendant, Carl E. Miller, from his conviction of communicating a terroristic threat (K.S.A. 21-3419). The charge arose as a result of defendant’s having burned a wooden cross on the driveway of the residence of Norman Manley, then an assistant county attorney for Butler County, Kansas. The sole issue presented on appeal is whether the trial court erred in ov...
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This suit was filed as one to quiet title to land owned by plaintiffs except for mineral rights to coal underlying *438 the land. Defendant's owned the mineral rights through six mineral deeds, each over fifty-five years old. In five of the six mineral deeds there were clauses giving the grantee the right to use the surface also, upon payment of $70 or $75 per acre. The trial court...
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delivered the opinion of the Court. The employer, Holly Sugar Corporation, appeals from an order of the Workers’ Compensation Court determining that Joy Church-hill was permanently totally disabled. The Court directed the employer to reinstate the claimant’s compensation benefits retroactive to when the employer cut them off, assessed the employer with a penalty, and ordered the employer t...
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delivered the opinion of the Court. James Clifton Jenkins was charged in August 1979 with two counts of robbery. He was tried by jury in the District Court of the Eighth Judicial District, Cascade County, the Honorable Joel Roth presiding. Jenkins was found guilty on both counts and sentenced to 20 years on each, the sentences to run consecutively. He appeals from both convictions. Pam Rains,...
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delivered the opinion of the Court. Appellant and respondent, Gordon Steven Jensen, hereinafter referred to as the husband, appeals from the judgment and order of the District Court of the Fourth Judicial District, Missoula County, the Honorable James B. Wheelis, presiding, entered after a hearing upon respondent Shirley Rae Jensen’s (wife’s) petition for specific enforcement and modificat...
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delivered the opinion of the Court. This is an appeal from a judgment setting aside a trustee’s sale and directing that the sale be reconducted. Once in a great while the wrath of mother nature tempers even the power and authority of law. On the quiet Sunday evening of May 18, 1980, in the northwest corner of the United States, an explosion occurred with a magnitude and energy of 500 Hiroshima ato...
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delivered the opinion of the Court. Plaintiffs Stenerson and Schmidt, contractors, brought this' action in District Court, Flathead County, seeking to recover $28,301.31 from the City of Kalispell. The district judge entered judgment for the contractors for the total cost overrun on a rough grading job on the Buffalo Hills Golf Course. The City appeals. In March 1975, the City of Kali...
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delivered the opinion of the Court. In December 1979 defendant Gary Brown was charged in Glacier County District Court with three counts of felony theft, alleged to have been committed in Cut Bank, Montana, on various dates in November and December 1979. Defendant entered not guilty pleas in January 1980. Thereafter, a pretrial agreement was entered into between defendant and the State. Pursuan...
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OPINION Appellant was convicted of possession of a controlled substance, NRS 453.336, after a trial before the bench. Appellant was sentenced to a prison term of three years. On May 31, 1979, police received an anonymous call from an acquaintance of appellant. The caller stated that appellant would be traveling to California that night in an orange van with brown striping for the purpose of pickin...
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OPINION A jury found appellant guilty of a burglary, in which a television had been stolen from a model home. On appeal, appellant contends the district court erred in denying his motion to suppress use of the television set as evidence. It appearing that this assignment of error has merit; and compels a new trial, we need not decide other issues. In Chimel v. California, 395 U.S. 752 (1969), the ...
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629 P.2d 784 (1980) 96 N.M. 281 Charlotte STRONG, Plaintiff-Appellee, v. Roy B. SHAW and Reco Corporation d/b/a Shaw Mobile Home Park, Defendants-Appellants. No. 4606. Court of Appeals of New Mexico. November 26, 1980. *785 Martin E. Threet, Rolf A. Melkus, Threet & King, Albuquerque, for defendants-appellants. Harry N. Relkin, Coan, Harris, Relkin & Lee, P.C., Albuquerque, for plaintiff-...
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An appeal by the plaintiff, Billy G. Blue, from an order of the trial court sustaining the demurrer of the defendant, Oklahoma Peterbilt Trucks (OPT), and entering judgment for OPT in an action to establish the priority of each party’s security interest in a truck. This case involves the priority of conflicting security interests in the same collateral. The pertinent facts are that OPT sol...
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The pivotal question here is whether an employee possesses an enforceable claim to a bonus for a specified amount which is “given” for efforts put forth during a period ending three months earlier but because of a lack of current funds is not to be paid until the following year, save for hardship situations? We hold he does and affirm. I For over 10 years James McGraw had been a valuable and trust...
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Did the trial court err in sustaining a demurrer to plaintiffs’ evidence in support of their application for a zoning variance which would permit them to build an attractive brick one-story office building on two adjoining lots zoned for single family residential dwellings? We hold he did and reverse. I Appellants, Cooper Bros. Investment Company and Elizabeth Swansberger, ad-ministratrix of her h...
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The 29-year-old oil field rig operator, Billy Southerland, was returning home late one night from his employer’s office in a company owned pickup when the truck left the road and crashed causing serious injuries. He filed a workers’ compensation claim. His employer, Christian, Inc., an oil well servicing company, answered contending the Workers’ Compensation Court was without jurisdiction to pass ...
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This is an appeal by J. W. (Jay) Rosen-grant from the trial court’s decision to cancel and set aside a warranty deed which attempted to vest title in him to certain property owned by his aunt and uncle, Mildred and Harold Rosengrant. The trial court held the deed was invalid for want of legal delivery. We affirm that decision. Harold and Mildred were a retired couple living on a farm southeast of ...
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The issue to be resolved is whether or not the amount of punitive damages set by the jury was so disproportionate to the actual damages awarded as to require the court, as a matter of law, to condemn it as excessive and as the result of “passion, prejudice, or improper sympathy” created by the prevailing party. We hold the record does not *806 show the punitive damage award to be excessive or t...
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This is an appeal by Treva K. Walters, a/k/a Kay Walters from the district court’s denial of her application to establish priority as the surviving spouse and heir of Henry Phifer. Ms. Walters filed the application for the purpose of contesting the appointment of Valerie Joe Phifer, now Dickenson, as administratrix of the estate of Henry Phifer. *809Ms. Walters claimed to be the common law wife of...
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This is an appeal by James L. Woolard Sr. and his son (hereinafter referred to as Defendants) from a default judgment entered against them in favor of Jim Marrs Drilling Company (hereinafter referred to as Plaintiff). Plaintiff filed suit in Creek County, Oklahoma on November 26, 1979 to recover money damages in the amount of $9,412 for goods and services sold and delivered to Defendants who are r...
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The question raised is whether the court has the power to terminate child support payments upon finding that the custodial parent unjustifiably refuses to honor the payor’s decretal right of child visitation. The trial court held that it did have and as a result denied the custodial parent’s request for a judgment against the noncustodial parent in an amount equal to the sum of the payments excuse...
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Defendant appealed to the Court of Appeals from his conviction of "driving while suspended,” ORS 487.560. He contended on that appeal that the evidence was insufficient for conviction because he was arrested while driving on the parking lot of an apartment complex which, according to defendant, was not "open to the public” within the meaning of ORS 487.535, which provides that Oregon statutes rela...
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Robert M. Burrows, District Attorney, and William D. Hostetler, Deputy District Attorney of Josephine County, are accused by the Oregon State Bar of unethical conduct in the criminal proceedings against one Steven McAllister. On June 13, 1976, at about 10:30 p.m. two people armed with a rifle robbed the “Why Not” market in Grants Pass, Josephine County, Oregon. The robbers fled the scene and we...
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Defendants request review of our decision denying their petition for an award of attorney fees on appeal. They rely on the fact that they were successful on appeal in enforcing their rights under the Truth In Lending Act (TILA). 15 USC § 1640. In our opinion reversing the trial court we found that they were entitled "to the statutory penalty provided in 15 U.S.C. § 1640 and to reasonable attorney...
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The Accused, a Deputy District Attorney, is found guilty of violating DR 7-104(A)(l) by communicating, or causing others to communicate, with a defendant in a criminal case without obtaining the defendant’s attorney’s consent. It is also found that the Accused concealed the communications. This opinion shall serve as a public reprimand. See In Re: Complaint as to the conduct of Robert M. Burrows, ...
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The State Accident Insurance Fund (SAIF) has petitioned for judicial review of an order of the Workers’ Compensation Board (Board) which reversed the part of the referee’s order which had found owner-drivers of taxicabs to be subject workers within the meaning of former ORS 656.005(28) (now ORS 656.005(29)). Although the referee and the Board had expressed substantial doubt about their subject ma...
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In this proceeding under ORS 183.400, petitioner challenges a rule of the Land Conservation and Development Commission (LCDC) which amends Statewide Planning Goal 14 (relating to urbanization). OAR 660-15-000. We hold that the amendment is valid. The amendment adds the following language to Goal 14: "Before the establishment of an urban growth boundary, all lands within city limits shall be urban ...
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Husband appeals the decree of dissolution contending that the award of permanent spousal support was excessive, that the court improperly awarded wife retroactive spousal support, that the court erred in making wife the irrevocable beneficiary of his National Service Life Insurance policy and that the court abused its discretion in allowing wife’s motion to set aside the default judgment and decre...
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In their petition for reconsideration and review, Oregon Sun Ranch, Inc., and Leon and Sharon Gritten assert two contentions which deserve consideration, in addition to re-asserting their other nine original assignments of error, which do not. The plaintiff was granted a decree strictly foreclosing a land sale contract in which plaintiff was the seller and defendants Oregon Sim Ranch, Inc., Leon G...
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Claimant appeals from a determination by the Workers’ Compensation Board (Board) affirming the referee’s opinion and order, which affirmed the determination order awarding claimant 15 percent permanent partial disability for unscheduled low back injury. Claimant asserts that he is permanently totally disabled: The referee found that claimant had not presented sufficient expert medical evidence to ...
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Claimant appeals from an order by the Workers’ Compensation Board (Board) reducing an award of permanent total disability made by the referee to 50 percent permanent partial disability for low back injuries. In August, 1978, at the age of 61, claimant incurred an acute lumbar sacral strain while driving a truck. Claimant did not finish the fifth grade and has worked as a logger and heavy equipment...
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In this criminal case defendant was convicted of Driving Under the Influence of Intoxicants, ORS 487.540, and Hit and Run (Unattended Vehicle). ORS 483.604. Both are Class A traffic infractions. Defendant had previously been convicted of Driving Under the Influence in December, 1977. After a jury had found defendant guilty of the principal charges, the trial court found the prior conviction to ...
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Petitioner seeks review of an order of the Oregon State Board of Dental Examiners (Board) revoking his license to practice dentistry in Oregon on grounds of "unprofessional conduct.” ORS 679.140(c). Specifically, the Board found that the petitioner had engaged in a pattern of both overcharging and overtreating patients. Petitioner challenges the Board’s order on several grounds. He contends, am...
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This is a workers’ compensation proceeding brought by the widow of a worker who died from asbestos-caused cancer. She seeks reversal of the decision of the Workers’ Compensation Board (Board) finding the claim noncompensable. In an earlier opinion we found her claim to be barred by the applicable statute of limitations. Fossum v. SAIF, 45 Or App 77, 607 P2d 773 (1980). The Supreme Court disagreed ...
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Defendant was charged with three counts of child neglect. ORS 163.545. The trial court granted her demurrer and dismissed the case on the ground that the child neglect statute is unconstitutionally vague. The state appeals. We reverse and remand for trial. ORS 163.545 reads as follows: "(1) A person having custody or control of a child under ten years of age commits the crime of child...
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This is an appeal from a dissolution of marriage decree in which wife seeks modification of the property division and an award of permanent spousal support. We modify the spousal support only. The facts are as follows: Husband and wife were married in 1957 at the ages of 21 and 18 respectively. At the time of trial this marriage had endured for 23 years; husband was 44 and wife was within a few da...
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This appeal by plaintiffs is from the trial court’s decree denying their prayer for specific performance of an alleged contract between themselves, as buyers, and defendants, as sellers, of real property. In the first cause of suit plaintiffs alleged that the contract was actually entered into by defendant Mr. Oland, only, on behalf of both defendants. This cause was severed and was tried separ...
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This is a suit for reformation of a stock certificate. The trial court ordered that the certificate, which was issued in the names of plaintiff and defendant as joint tenants, be reformed by removing defendant’s name and that a new certificate be issued in plaintiffs name alone. We reverse. Plaintiff was 67 years of age, in August, 1977, when the stock certificate was issued to her and def...
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In September, 1978, plaintiff brought an action against defendants for waste, trespass and conversion and prayed for both general and punitive damages. On June 29, 1979, a default order was entered against defendants for failure to file an answer, and judgment was entered on the default for both general and punitive damages. Subsequently, in August, 1979, the default was set aside and defendants f...
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The state appeals1 a pre-trial order allowing defendant’s motion to suppress property seized from defendant’s car following a stop for a traffic infraction. The issue is whether the police had probable cause to seize a small closed cosmetic case (compact) and a folded bank envelope they observed in plain view on the floorboard of the defendant’s car. The defendant moved to suppress "any and all ev...
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629 P.2d 883 (1981) 52 Or.App. 825 In the matter of the Marriage of Beth Annette YANTIS, Respondent, AND Clifford G. Yantis, Appellant. No. 79-1045-E; CA 18590. Court of Appeals of Oregon. Decided June 15, 1981. Argued and Submitted January 19, 1981. *884 Robert S. Hamilton, Klamath Falls, argued the cause and filed the brief for appellant. D.L. Hoots, Klamath Falls, argued the cause and filed th...
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Defendant was charged with the class "A” misdemeanor of "Illegal Possession of Doe Deer.”1 The state appeals, challenging the sanction of dismissal imposed by the trial court after an omnibus hearing for violation of the discovery statute. ORS 135.815. We reverse. Following a motion to dismiss or, alternatively, to exclude testimony, the trial court made findings of fact reflecting the history of ...
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The parties agree that the issue presented on this appeal has become moot. Appeal dismissed....
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The state concedes the court erred. We agree. Reversed and remanded for trial....
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The defendant appeals from that portion of the district court’s consolidated order which requires him to pay $2,600 to the plaintiff for child support and arrearages in his support payments. We affirm the district court’s order. All statutory references are to Utah Code Annotated, 1953, as amended. On September 7, 1976, the district court of Sweetwater County, Wyoming, issued a divorce dec...
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Petitioner Mark Wickham was a pretrial detainee at the Weber County jail at the time this case was at issue in the trial court. He attacked the conditions of confinement at the jail as being in violation of the due process clause of the Fourteenth Amendment and the cruel and unusual punishment prohibition of the Eighth Amendment of the United States Constitution. The District Court for Weber Co...
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Plaintiff Jill Berling Farver appeals from an order granting summary judgment in favor of defendants John and Betty Berling. The principal issue presented on appeal is whether a wife's interest in her husband's state pension 1 is inheritable. We hold it is and, accordingly, reverse the trial court's order. *140 Phyllis and John Berling were married in 1944. In 1974 John...
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Joseph Thomas Caldwell appeals his first degree robbery conviction arising from a July 1979 holdup *397of a store in Tacoma. On appeal he challenges a ruling that allowed his parole officer to testify about his prior criminal convictions. This testimony was allowed for impeachment purposes after he refused to admit those convictions upon both direct and cross-examination. He also argues that admis...
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Defendant Donald R. Weddel appeals his conviction of second degree burglary. We affirm. On March 18, 1979, Larry and Jacqueline Wassman returned to their home in Lacey and discovered a gray Chevrolet Chevelle in their driveway with a young woman in the front seat. After the Wassmans had a brief conversation with the woman, who indicated that she thought their house was the residence of "th...
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This is an appeal by a real estate contract purchaser from a judgment declaring forfeiture of a real estate contract and awarding the seller damages for unlawful detainer. On June 29, 1973, Simon Markland, plaintiff, sold defendants Neil and Joan Wheeldon a Wahkiakum County farm under a real estate contract. Under the terms of the contract, $10,000 of the $40,000 purchase price was paid at the ...
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The Rowes appeal, and the Floyds cross-appeal from the failure of the trial court to award either of them attorney's fees in a suit upon a real estate contract which provides: In the event of any lawsuit between the parties to this contract to settle issues arising hereunder, the prevailing party shall recover judgment against the other party for a reasonable attorney's fee. At seller's option,...
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Plaintiff petitions for rehearing of our decision in Rosboro Lumber Co. v. Heine et al, 289 Or 909, 618 P2d 960 (1980), in which we denied plaintiff’s claim on the ground that the writ of review is an available remedy in the Oregon Tax Court and that plaintiff’s failure to exercise that remedy within the procedures of ORS 34.030 precluded its use of a writ of mandamus in this case. In seeking a re...
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Kathleen Cavell appeals from a judgment dismissing her action for specific performance on an earnest money agreement for the sale of defendant's house. The issue on appeal is whether the condition precedent to defendant John Hughes' obligation under the agreement was either excused or waived, thus requiring that he complete the sale. We hold that defendant's actions did excuse the condition, an...
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Dan Boyd appeals his conviction for eluding a police officer, alleging failure by the police to preserve evidence material to his defense. We reverse. Boyd testified 1 that as he and a friend were leaving the parking lot of the Coconut Grove, a Bellingham tavern, at about 1:30 a.m. on September 25,1979, a Chevrolet Camaro spun several rocks at his car. The rocks struck Boyd's car, a silver Co...
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Opinion The present appeal—the third in this protracted proceeding—stems from plaintiff’s repeated efforts to enforce a portion of a court judgment awarding her $25,000 in attorney’s fees, entered against the various defendant state agencies and officers in April 1973, eight years ago. Shortly after the entry of the 1973 judgment, defendants filed their initial appeal, challenging, inter alia, bo...
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Opinion We granted a hearing in this case to review the propriety of an investigative detention of defendant by police officers. After an independent study of the issues, we have concluded that the thoughtful opinion of Justice Newman (J. M.), assigned to sit with the Court of Appeal, Second Appellate District, in this case, correctly treats the issues and that we should adopt it as our own. That ...
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OPINION The issue presented by these proceedings is whether, in the absence of any authorizing statute on the subject, a promise of immunity by a state prosecutor and court may be used to compel testimony from a witness in a criminal proceeding, despite the witness’s claim of the privilege against self-incrimination. We conclude that under proper circumstances, the testimony so immunized ...
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*982 OPINION On May 20, 1974, Kodiak Lumber Mills, Inc. (KLM) contracted with General Construction Co. for the construction of a deep water dock at Tyonek to be used for loading ships with wood products obtained from the surrounding area. The work on the dock began a few months thereafter. At the same time Tyonek Timber, Inc. was in the process of building a chip mill for KLM near the dock ar...
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OPINION This is a sentence appeal from a fifteen-year sentence for manslaughter.1 It is the second time this sentence has been before the appellate courts. Husted v. State, 608 P.2d 298 (Alaska 1980). A brief review of the facts of the offense is required. Husted was convicted after a jury trial of involuntary manslaughter,2 and acquitted of murder. His version of the events is that he had heard f...
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The above named defendants were all sentenced to death after convictions for first degree murder with aggravating circumstances. Their convictions have been affirmed by this court. Each of the defendants was represented by either the Maricopa County Public Defender or the Pima County Public Defender. The Attorney General and the Maricopa County Attorney filed motions in the superior court to preve...
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Petitioner brought this special action to challenge an order of the Maricopa County Superior Court suppressing evidence critical to its presentation of a child molestation and sexual exploitation case. We have jurisdiction pursuant to A.R.S.Const. Art. 6, § 5(4). Following oral argument we issued an order, with written opinion to follow, vacating the trial court suppression order so that trial,...
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OPINION This case presents us with the issue of whether A.R.S. Sec. 33-741, which provides grace periods for forfeiture of the interest of purchasers under contracts for the conveyance of real property, applies to a *161 straight cash transaction and therefore allows a defaulting purchaser extra time in which to close the sale. We hold that it does not and affirm the judgment...
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OPINION In this appeal we decide the issue of whether the “other insurance” clause of an injured party’s auto insurance policy applies while the insured is a passenger in another auto, the driver of which carries his own insurance. Maria Almagro was injured in an auto accident in Pima County on August 13, 1979. On that date, Maria’s father had effective auto insurance policies with both Allst...
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OPINION This appeal arises from the trial court’s granting of appellee’s motion to dismiss Counts III, IV and V of appellant’s complaint. Briefly, the complaint shows that on August 11, 1977, at approximately 9:20 p. m., appellant, a Mexican citizen, tried to board a Southern Pacific freight train as it was passing through Picacho, Arizona. Four employees of appellee Southern Pacific...
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129 Ariz. 171 (1981) 629 P.2d 1007 Hector E. LeDESMA and Rose E. LeDesma, his wife, Plaintiffs-Appellants, v. PIONEER NATIONAL TITLE INSURANCE COMPANY, a California Corporation, Defendant-Appellee. No. 1 CA-CIV 4764. Court of Appeals of Arizona, Division 1, Department B. April 2, 1981. Rehearing Denied May 12, 1981. Review Denied June 2, 1981. *172 Miller, Mark & Simon, Ltd. by Joseph B. Mill...
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OPINION The sole question presented in this appeal is whether A.R.S. § 33-809 requires that a trustee mail two separate copies of a notice of sale to a trustor in default under a deed of trust, when that trustor still appears to have an interest in the trust property at the time of the recording of the notice of sale. The facts are simple and undisputed. Appellants executed a note in the amount o...
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OPINION Rollin B. Moore, Jr., as personal representative, and Rollin B. Moore, Jr. and Carolyn Moore Caine as residuary devisees of the estate of Janet K. Thompson have appealed the granting of a summary judgment to Valley National Bank, et al. Because we find the appellants are without standing to maintain this action, either here or in the lower court, we dismiss the appeal. On January 13, ...
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OPINION This is an appeal from an order dismissing appellant’s amended complaint against Ford Motor Company and Ford Marketing Corporation. The issue is whether the amendment related back to the date of the original complaint, thus precluding the application of the two-year statute of limitations. We find that it did and that the trial court erred in its dismissal. This is a products liability ca...
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OPINION In this special action review of an Industrial Commission award, petitioner challenges the administrative law judge’s award that she was stationary with a 30 percent permanent scheduled disability. It is her contention that she is entitled to a program of vocational rehabilitation as a part of active medical treatment. At the time of the injury to her knee on April 24, 1976, petitioner was...
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OPINION Appellant was convicted by a jury of armed robbery, a class two felony, and the dangerous nature allegation was found to be true. He was sentenced to seven years’ imprisonment, the minimum term. On appeal, appellant raises four issues for our consideration: (1) That the prosecutor’s closing argument was improper, prejudicial and denied him a fair trial; (2) that the court committed er...
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OPINION The sole issue presented in this appeal is whether a custodial parent can waive the collection of child support arrearages under the particular facts of this case. The appellant, Sylvia Ayon Cordova, and the appellee, Alphonso Abel Lucero, were divorced on November 16,1973. The father was offered to pay child support in the sum of $150.00 a month for each of his three minor children. ...
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OPINION In this appeal we are asked to decide whether appellees (third party defendants below) were properly dismissed from an action brought against them by appellant (third party plaintiff below). In April 1971, appellant Chirco sold a house it had constructed to Mr. and Mrs. Woodward, plaintiffs below. After the Woodwards moved into the house, the land underneath it began to settle, causin...
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OPINION Does the negligent inspection of out-of-state motor vehicles to determine whether they were stolen give rise to a cause of action against the state? This is the issue presented by this appeal. Plaintiff/appellee Bill Moore Motor Homes, Inc. (Moore), a dealer in motor homes, instituted an action against William Lanier and a separate action against the State of Arizona. Both su...
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OPINION In this appeal we must decide whether the trial court properly dismissed a third-party action brought by appellants after appellees, third-party defendants below, moved for judgment on the pleadings pursuant to 16 A.R.S., Rules of Civil Procedure, rule 12(c). *197On November 29, 1978, plaintiffs filed a complaint against appellants in contract for rent due on a 330-acre cotton farm, as we...
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OPINION This is a joint appeal by Billy Ray Banks and Ralph Ben-David from a judgment denying special action relief. The sole issue on appeal is whether the Arizona Board of Pardons and Paroles is required to provide a written statement of reasons for denying an application for commutation of sentence. We hold that the Board is not required to provide such a statement and accordingly affi...
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The People appeal from a judgment of the district court of Otero County holding section 16-8-105(4), C.R.S.1973 (1978 Rep. Vol. 8), unconstitutional as applied to the defendant, Manuel Chavez. That section requires the court to automatically commit a defendant found not guilty by reason of insanity to the department of institutions until such time as he is found eligible for release. The court co...
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629 P.2d 1055 (1981) Rexford Michael SMITH, Petitioner, v. The DISTRICT COURT FOR the FOURTH JUDICIAL DISTRICT, STATE OF COLORADO, DIVISION 6, the Honorable Hunter D. Hardeman, District Judge, Respondent. No. 80SA395. Supreme Court of Colorado, En Banc. June 8, 1981. Rehearing Denied July 6, 1981. *1056 J. Gregory Walta, Colorado State Public Defender, Kenneth Dresner, Barbara S. Blackman, Deputy...
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Appellant C. M. Morey, doing business as Star Motor Freight Lines (Star) 1 , appeals from a district court order affirming a decision of the Public Utilities Commission (P. U. C. or Commission). The P. U. C. denied Star’s application for a certificate of convenience and necessity authorizing it to transport general commodities as a motor vehicle common carrier 2 between De...
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629 P.2d 1069 (1981) In re the MARRIAGE OF Roal S. ROBINSON, Petitioner, and LaVelle S. Robinson, Respondent. No. 79SC297. Supreme Court of Colorado, En Banc. June 8, 1981. *1070 Marshall & Marshall, Donald W. Marshall, Jr., Brighton, for petitioner. Gaunt, Dirrim & Coover, C. Vincent Phelps, Brighton, for respondent. LOHR, Justice. The Adams County District Court ruled that a 19-year-old...
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629 P.2d 1074 (1981) Ralph GONZALES, Petitioner, v. The DISTRICT COURT In and For the COUNTY OF OTERO, State of Colorado, and the Honorable Fred E. Sisk, one of the Judges thereof, Respondents. No. 80 SA 553. Supreme Court of Colorado, En Banc. June 15, 1981. *1075 Lawrence K. Dean, Philip M. Bienvenu, Colorado Rural Legal Services, Inc., La Junta, for petitioner. Michael T. Mitchell, Mitchell &a...
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In this original proceeding under C.A.R. 21, the Petitioner Ralph Gonzales asks us to vacate an order of the Respondent Otero County District Court (Otero District Court) denying his motion to dismiss a citation directing him to appear and show cause why he should not be held in contempt of the Otero District Court for his alleged failure to comply with a Decree of Dissolution (decree) entered by ...
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In this original proceeding, the petitioner Kenneth L. Stephenson requests a writ in the nature of prohibition and mandamus restraining the respondent district court from revoking the petitioner’s personal recognizance bond. We issued a rule to show cause, and now make that rule absolute. On October 30, 1980, the day after his arrest, the petitioner appeared in custody before a judge of the county...
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Defendant, Kenneth Lepik, was charged with the offenses of Introducing Contraband in the First Degree, section 18-8-203, C.R.S. 1973 (1978 Repl. Vol. 8), and Introducing Contraband in the Second Degree, section 18-8-204, C.R.S. 1973 (1978 Repl. Vol. 8). The charges arose out of an incident on December 11,1977, involving the defendant, a security guard at the Colorado State Hospital in Pueb...
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The defendant, James R. Hoehl, appeals his conviction of the offense of intentional and knowing child abuse as proscribed by § 18-6-401, C.R.S.1973. Because he had been acquitted of the companion charge of first degree assault at a previous trial Hoehl asserts in this appeal that the doctrine of collateral estoppel precludes his conviction on the child abuse charge. He also argues that the court ...
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The City and County of Denver (City) appeals the order of the trial court requir*1087ing that a grievance filed by Michael D. McNeill as representative of plaintiffs Denver Fire Fighters be submitted to arbitration in compliance with the provisions of a collective bargaining agreement entered into by plaintiff and defendant. We affirm. Pursuant to an amendment to the City Charter authorizing colle...
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Defendant, Carlos Ray McCombs, appeals his conviction of second degree burglary. We affirm. On October 25, 1979, at 12:15 a. m., two police officers responded to a silent burglar alarm at a Skaggs Drugstore in Aurora, Colorado. The store had closed approximately three hours earlier. When they arrived, the officers saw a car enter the area and park on an unpaved portion of a parking lot that adj...
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In this workmen’s compensation case, claimant seeks review of an Industrial Commission order denying his permanent disability claim. We affirm. On March 2, 1976, claimant sustained injuries in an employment-related traffic accident. Respondent insurance carrier filed a Special Admission of Liability for the time claimant missed from work, and voluntarily made temporary total disability payments...
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Plaintiff, Union Rural Electric Association, Inc., (Union Rural) appeals from the trial court’s order denying it injunctive relief against defendant Town of Frederick (Frederick). We affirm. Union Rural is a public utility possessing a certificate of public convenience and necessity which authorizes it to furnish electricity to the service area designated in the certificate. Frederick operates its...
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Defendant Marwich, Ltd., appeals an order setting aside public trustee deeds and dismissing Marwich’s forcible entry and de-tainer action (FED) against plaintiffs Bobbie L. and Elizabeth K. Moreland. We reverse. The Morelands executed two deeds of trust on their residential property to secure promissory notes payable to Platte Valley Bank (the bank). The notes became in default. In July 1979, t...
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Defendant, Winifred Mitchell Green, appeals his conviction of conspiracy to commit first degree murder, attempt to commit first degree murder, and criminal solicitation. We reverse. The record reveals that one Frank Moore was seriously injured when he was shot several times outside a pool hall in Colorado Springs. Moore had robbed defendant’s home prior to the shooting, and had fathered a child...
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Plaintiff, Dr. Leroy M. Even, appeals a summary judgment dismissing his action against defendant, Longmont United Hospital Association, arising out of his October 1974 suspension from the active medical staff of the hospital. We affirm. *1102 The hospital association is a non-profit corporation. Its management is vested solely in its three officers and its nine person board of dir...
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Randy Húsar appeals from the dismissal by the district court of a petition for writ in the nature of mandamus which requested an order requiring respondent to provide Húsar with a jury trial in an action under § 13-40-104 of the Forcible Entry and De-tainer Act, § 13-40-101, et seq., C.R.S. 1973, and under § 38-12-201 of the Mobile Home Park Landlord-Tenant Act, § 38-12-201, et seq., C.R.S. 1973 (...
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629 P.2d 1105 (1981) Marion K. FORREST and Julia A. Forrest, Plaintiffs-Appellants, v. The COUNTY COMMISSIONERS IN AND FOR the COUNTY OF ADAMS, State of Colorado, and Bert Johnson, Sheriff of the County of Adams, State of Colorado, individually and jointly and severally, Defendants-Appellees, and IMPERIAL DISTRIBUTION SERVICES, INC., a Delaware corporation, Paul F. Larned, and Edward Lake, Defend...
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Plaintiffs, Marion K. Forrest and Julia A. Forrest, appeal the order of the trial court dismissing their claims against Adams County and Bert Johnson, Sheriff of Adams County, for their failure to comply with the provisions of § 30-25-110,1 C.R.S.1973, which governs the presentation and payment of a claim against a county. Plaintiffs contend that it is unnecessary for a plaintiff in a tort action ...
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Nancy B. Ashlock (wife) appeals an order of the trial court requiring Thomas R. Ash-lock (husband) to pay support for the parties’ minor children contending that the amount of support ordered is inadequate. We reverse. The parties were married on July 9, 1977, and at the time of the marriage, wife had four children by a prior marriage. By decree entered on May 4, 1979, husband adopted the four ...
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*413 OPINION OF THE COURT BY These three consolidated appeals present the question whether Article I, § 11 of the Hawaii State Constitution which creates the position of an independent counsel to advise the grand jury is (1) self-executing and (2) supplements the due process rights of an accused. Each of the appellants was indicted after the amendment was proposed by the Hawaii C...
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*432 OPINION OF THE COURT BY The plaintiff, Maurice R. Silver, M.D., has appealed from the trial court’s orders granting summary judgment to defendants Queen’s Hospital and St. Francis Hospital and to individual defendants Ralph B. Cloward, M.D., John J. Lowrey, M.D., and Thomas S. Bennett, M.D., and from the orders denying his own motions for summary judgment as to these defenda...
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*425 OPINION OF THE COURT BY This is an appeal by the defendant from a circuit court order disqualifying and enjoining him and his deputies from exercising their prosecutorial powers. By letters, dated October 20 and 21, 1976, to the defendant, Maurice Sapienza, then the Prosecuting Attorney of the City and County of Honolulu, the plaintiff, Ronald Y. Amemiya, then acting in his capacity as t...
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In a jury-waived trial, the trial court found the defendant guilty of promoting pornography in violation of HRS § 712-I214(l)(a)(1976). 1 He appeals from the judgment and sentence of the trial court. On March SO, 1978, police officer Richard Nagao, in plainclothes, entered the Nui Nui Gift Shop on Ala Moana Boulevard, where the defendant was employed. While the officer was brows...
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629 P.2d 1134 (1981) MOLOKAI HOMESTEADERS COOPERATIVE ASSOCIATION, Samuel M. Peters, Sr., Rose May Peters Enos, Lucy Flores, Harry Kealoha, Maraea K. Pawn, Sr., Amoy Dacuycuy, Elizabeth Bartolome, Edward K. Pelekai, Martha Naeole, Elizabeth Makaiwi, James Mawae, Jr., Annie Kaawa, Ruth Awai, Joan Mollena, Edmund J. Kaimikana, Parker English, Philip I. Estermann, Samuel M. Peters, Jr., and Walter R...
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*455OPINION OF THE COURT BY This case represents the last in a series of legal challenges to the validity of the agreement between Defendant-Appellee Board of Land and Natural Resources of the State of Hawaii (hereafter the Board), and Defendant-Appellee Kaluakoi Corporation (hereafter Kaluakoi) for the use of the transmission facilities of the Molokai Irrigation System (hereafter the System) by K...
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629 P.2d 1146 (1981) Natividad Corpuz ESCRITOR, Special Administrator of the Estate of Fernando Escritor, Deceased, Natividad Corpuz Escritor, Individually, and Francisco Escritor, Plaintiffs-Appellants. v. MAUI COUNTY COUNCIL, LTD., Boy Scouts of America, and Antone Kinores, Defendants-Appellees. No. 7948. Intermediate Court of Appeals of Hawaii. June 2, 1981. Opinion on Denial of Reconsideratio...
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In this case, we sua sponte ordered additional briefing on the question of whether we had jurisdiction of the appeal. The facts involved on that issue are as follows: The complaint herein *201named one corporation, one individual and John and Mary Does 1-10 as defendants. The Does were named pursuant to Rule 17(d), Hawaii Rules of Civil Procedure (HRCP), under a pro forma allegation that their nam...
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*235 OPINION OF THE COURT BY This case involves a dispute between two landowners on the Island of Molokai over the location of the common boundary between their properties. Although it was a quiet title action, no attempt was made to join unknown persons who may claim an interest in the property in question. Accordingly, the decree below adjudicated rights only as between the parties to the a...
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Plaintiff-appellant James W. Kolp appeals the district court’s denial of his request for a writ of mandamus compelling the Butte County School District No. Ill to reinstate him as a teacher for the district. We affirm in part and we reverse in part with a remand for further proceedings de novo. Appellant Kolp was employed as a certificated employee of the Butte County School District No. 111. Duri...
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This is an appeal from a district court’s denial of an action by plaintiff-appellant Burley Brick and Sand Co., (hereinafter Burley Brick) to establish either an easement by necessity or an easement by implication. In December 1959, Mr. and Mrs. Cofer conveyed ten acres out of their ranch in Minidoka County to Burley Brick for $3,000. Although the deed is silent in regards to the granting ...
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Dan Gamble, the plaintiff-appellant, instituted this action against Timothy Kinch, the defendant-respondent, to recover for property damage sustained when the plaintiff’s automobile was struck by an automobile owned by the defendant and being driven by an unknown party. At the conclusion of the trial, the magistrate’s division of the district court entered judgment in favor of the plaintiff. Th...
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Allen R. Jordan appeals from his jury trial conviction of first-degree murder (K.S.A. 21-3401), rape (K.S.A. 1979 Supp. 21-3502), and aggravated burglary (K.S.A. 21-3716). On May 9, 1979, the body of Kay L. Robinson was discovered in an apartment in Augusta. Her throat had been slashed. Additional facts will be supplied as necessary for the determination of particular points on appeal. Defendant’s...
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On May 30, 1980, Southwestern Bell Telephone Company (SWB) filed its application with the Kansas Corporation Commission (Commission) for a general rate increase. In preparation of the case, SWB and the Commission’s staff entered into an agreement for the production of documents on discovery. Pursuant to this agreement, certain documents SWB considered confidential and proprietary (trade secrets...
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delivered the opinion of the Court. Plaintiff Linder seeks a determination of the constitutionality of the Montana Medical Malpractice Panel Act, sections 27-6-101 et seq., MCA. This Court accepted original jurisdiction of the cause in a declaratory judgment proceeding. We find that the act is constitutional with one exception as hereafter noted. Plaintiff Linder allegedly suffer...
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OPINION Appellant was convicted of kidnapping and sexual assault. During the trial two police matrons were allowed to testify in great detail concerning what the victim told them about the incident after its occurrence. “Such testimony is hearsay, and was inadmissible in evidence except in her [the victim’s] cross-examination, or as confirmatory of her story if attacked.” State v. Campbell, 2...
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OPINION Appellant, Crow-Spieker #23 (hereinafter #23), filed suit against respondent seeking specific performance of an alleged right of first refusal extended to #23 by respondent Robinson. The lower court granted respondents’ motion for summary judgment concluding that the parol evidence rule excluded the introduction of any evidence of consideration for the first right of refusal. Because we...
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OPINION Appellant filed a civil complaint against respondents alleging: (1) that respondents violated an oral agreement between the parties by failing to convey a certain piece of real property; (2) that respondents fraudulently hold title to a parcel of real property of which appellant is the rightful owner by virtue of having paid the entire purchase price therefor as well as all taxes and as...
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OPINION In this appeal, we are required to determine whether the trial court erred in issuing an order setting aside an appraisal award. We determine that it did not and affirm. In 1977, a fire destroyed substantial portions of the Nevada Motel. The owner, respondent herein, had insured the premises against fire with appellant St. Paul. A dispute then arose between St. Paul and Wright as to...
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*315 OPINION This action was commenced by Charles J. Ottenheimer, “a registered representative” under NRS 119.090, asking that the 1973 amendment to NRS 119.180 be determined unconstitutional as an invalid exercise of the state’s police powers. Before the amendment (SB 259, Stat. Nev. 1973, Ch. 792), a “registered representative” could offer or sell subdivision property, without being license...
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OPINION By the Court, The issue presented on this appeal is whether the protections of the anti-deficiency legislation, NRS 40.451 et seq., apply to *321 guarantors. Appellant asks us to reconsider our decision in Manufacturers & Traders Trust v. Dist. Ct., 94 Nev. 551, 583 P.2d 444 (1978) in which we held that they do not. THE FACTS Respondent, ...
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*334 OPINION By the Court, These original proceedings are a consolidation of three cases: in 12808 and 13012, the lower court refused to quash service of process upon petitioners; in 13048, the lower court granted defendant-respondents’ motion to quash service of process. THE FACTS On January 24, 1979, a complaint was filed by the Nevada Co-Administrators for t...
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OPINION In this appeal we must determine whether there is substantial evidence to support the trial court’s finding that the family residence was community property. We determine that the trial court’s finding is so supported by the evidence, and affirm. *341 In 1967, Barton and Florence King, while married and with community funds, acquired title to a family residence as “husband and wife,...
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OPINION Norman Ellenberger was indicted by a grand jury on ten counts of fraud in excess of $100 in violation of Section 30-16-6, N.M.S.A. 1978, and twelve counts of making false public vouchers contrary to Section 30-23-3, N.M.S.A. 1978. The trial court dismissed all the charges involving alleged false vouchers. The State filed an interlocutory appeal as to dismissal of those counts to the Cou...
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OPINION The issue before this Court on certiorari is whether, pursuant to Section 52-l-30(B), N.M.S.A.1978, the district court was correct in awarding appellant Rose Ann Spidle a lump-sum settlement in lieu of future weekly workmen’s compensation benefits. Appellant, the widow of a worker covered under the Workmen’s Compensation Act, §§ 52-1-1 through 52-1-69, N.M.S.A.1978 (Orig.Pamp. and...
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OPINION The Attorney General (AG) obtained a multicount indictment against the appellee, William R. Koehler, charging him with embezzlement and securities law violations. The trial court dismissed the indictment without prejudice. The AG appealed to the Court of Appeals. Koehler cross-appealed. The AG moved to certify the appeal to this Court. The motion was granted. We reverse the trial court, re...
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OPINION The issue before this Court on certiorari is whether the State of New Mexico has a right to impose a gross receipts tax on a non-Indian contractor’s activities on an Indian reservation. We discuss: (I) Whether the petitioner, Tiffany Construction Company, Inc., properly preserved its right to appeal, and (II) Whether respondent, the State of New Mexico, may constitutionally levy a New Mexi...
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ORDER This case is on remand from the United States Supreme Court with instructions to reconsider it in light of White Mountain Apache Tribe v. Bracker, 448 U.S. 160, 100 S.Ct. 2599, 65 L.Ed.2d 665 (1980) and Central Machinery Co. v. Arizona State Tax Commission, 448 U.S. 160, 100 S.Ct. 2599, 65 L.Ed.2d 684 (1980). The cases involved the attempted imposition of various state taxes on non-Indian en...
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OPINION Plaintiff appeals from a judgment in a workmen’s compensation case that plaintiff take nothing by his complaint and that it be dismissed with prejudice. We remand. The trial court found: Plaintiff sustained an accidental injury while in the scope and course of his employment on August 16, 1977, and, as a result, plaintiff sustained bilateral inguinal herniae which resulted in temporary to...
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OPINION Plaintiff appeals from a judgment in a workmen’s compensation case that plaintiff take nothing by his complaint and that it be dismissed with prejudice. We affirm. The trial court found: Plaintiff sustained an accidental injury while in the scope and course of his employment on August 16, 1977, and, as a result, plaintiff sustained bilateral inguinal herniae which resulted in temporary to...
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OPINION The defendant was charged with driving while intoxicated contrary to § 66-8-102, N.M.S.A.1978 (Supp.1980). The State appeals the trial court’s granting of defendant’s motion to exclude any evidence of defendant’s refusal to undergo a blood alcohol test at the time of his arrest. We affirm. We decide only the issue of relevancy of the refusal in light of our case law and statutes. The ...
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In February of 1980, the Attorney General of the State of Oklahoma sought access to certain public records of the Oklahoma Industries Authority, a Public Trust created under the laws of Oklahoma. An Assistant Attorney General, and the legal representative of seven independent school districts, the Oklahoma Education Association, the Oklahoma Congress of Parents and Teachers, Inc., the Enid Educati...
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On April 7, 1977, the Corporation Commission issued a pooling order (Order No. 128576) pursuant to an application made by Global Gas Corporation (Cause CD No. 478Ó1) pooling the interests in a 640-acre drilling and spacing unit (Section 23, Township 3 North, Range 11 East, Coal County, Oklahoma). The order named Global Gas as operator; fixed $25.00 per mineral acre as a fair and reasonable payment...
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Xelford Willis, a minor, by his mother, Anna B. Coleman, as next of friend, (plaintiff), brought this medical malpractice action to recover for the loss of Xelford’s eye allegedly sustained as a result of the negligence of David Fried, M.D., a physician on duty in the emergency room at Presbyterian Hospital, Inc. The doctrine of responde-at superior was relied on to establish the hospital’s lia...
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629 P.2d 1258 (1981) W.L. QUALLS, Jr. and Carolyn Qualls, husband and wife, Appellants, v. FARMERS INSURANCE COMPANY, INC., Appellee. No. 52433. Supreme Court of Oklahoma. June 9, 1981. J. Clark Russell, Russell, Payne & Farber, Oklahoma City, for appellants. Clarence P. Green, Green & James, Oklahoma City, for appellee. LAVENDER, Justice: This is an appeal from an order overruling a moti...
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MEMORANDUM DECISION This cause is reached for consideration of appellee’s petition for certiorari to the Court of Appeals, Div. 1. Upon examination of the record and of the instruments on file, certiorari is granted. The opinion of the Court of Appeals is vacated, the judgment of the trial court is reversed and the cause is remanded to the District Court, Comanche County, Hon. Jack Brock, Judge...
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OPINION James Calvin Turner was convicted of unlawful delivery of a controlled drug after he gave some Demerol to two narcotics agents in Ada. The delivery occurred after Turner received a telephone call from a man named Johnson, a drifter whom Turner had befriended. Prior to this drug transaction, Turner had arranged for Johnson to obtain room and board from Turner’s mother, a ceramic shop own...
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629 P.2d 1266 (1981) Johnnie Joe SUITOR, Appellant, v. The STATE of Oklahoma, Appellee. No. F-79-313. Court of Criminal Appeals of Oklahoma. June 4, 1981. Johnnie Joe Suitor, pro se, Rene P. Henry, Jr., Hominy, for appellant. Jan Eric Cartwright, Atty. Gen., C. Elaine Alexander, Asst. Atty. Gen., Mark Liddell, Legal Intern, State of Oklahoma, Oklahoma City, for appellee. *1267 OPINION CORNISH, ...
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OPINION James L. Sontag, hereinafter referred to as the appellant, is a licensed and practicing member of the Oklahoma Bar, and was directed to serve as legal counsel for Terry Blankenship. Mr. Blankenship had been charged with a crime in Nowata County and was indigent, necessitating the services of court-appointed counsel. The court, pursuant to 22 O.S.1971, § 464, 1 informed ...
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OPINION Willie Joe Steele, the appellant, has appealed from two convictions in the District Court of Bryan County. In Case No. CRF-78-129, he was convicted of Rape in the First Degree, and in Case No. CRF-78-133, he was convicted of Assault and Battery With a Deadly Weapon With Intent to Kill. The jury set punishment for the rape charge at fifty (50) years and for the assault and battery charge at...
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MEMORANDUM OPINION The appellants, James Haskell Luman and Kenneth Eugene Luman, were convicted of Unlawful Cultivation of Marijuana and Unlawful Possession of Marijuana With Intent To Distribute in the District Court of LeFlore County. Sheriff Kirkland, of LeFlore County, received an anonymous telephone call stating that a substance believed to be marijuana, surrounded by a cornfield, was gr...
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MEMORANDUM OPINION Aubrey Ephriam appeals from a conviction in the District Court of Comanche County, Oklahoma, Case No, CRM-79-723, for the offense of Soliciting Prostitution and a sentence of one year imprisonment. Otis Russell, a Lawton police officer working undercover, was approached by the appellant in the adult bookstore where the appellant was a clerk and asked by Ephriam to engage in illi...
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OPINION The appellant, Tony Ray Maxville was convicted in the District Court, of Tulsa County, of the offense of Assault With a Dangerous Weapon. Punishment was set at three (3) years’ imprisonment. At trial, Tulsa Police Officer Kim Ray Terry testified that early in the morning on Friday October 13, 1978, he was dispatched to investigate a non-injury traffic accident. Upon arrival at the sce...
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The parties to this appeal had been married more than 30 years and had accumulated a substantial estate, at least partly through gifts from the husband’s father. Plaintiff wife filed suit for divorce on August 26, 1977; the divorce was granted by agreement after last minute pre-trial negotiation and settlement on July 24,1978. The parties reserved only the issues of who was to pay attorney’s fe...
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This is an appeal by Oklahoma City (hereinafter referred to as City) from a district court judgment enjoining City from enforcing certain of its “A” single family zoning ordinances as they apply to property owned by Rita Jane Lynch and Helen Hill (hereinafter referred to as Lynch & Hill). The court also judicially authorized Lynch & Hill to use their property according to the “E” commercial cla...
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This appeal is from the dismissal of a personal injury action filed by Bill Floyd (hereinafter referred to as employee) against F-B Truck Line Company (hereinafter referred to as trucking company). Employee was working for National Steel Service Center, Inc., (hereinafter referred to as Service Center) unloading steel which had been transported by trucking company, an independent contractor, for N...
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This is an appeal by Walter Lee Bingham (hereinafter referred to as Husband) from the trial court’s order modifying a divorce decree wherein he was not required to pay any child support for his adopted children. The court ordered him to begin paying $75 per month, per child, until each reached majority. Husband appeals. The pertinent facts arise from an increasingly common occurrence in that Husba...
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An appeal by the defendants below, Richard F. and Vicki A. Green, from a summary judgment and deficiency judgment entered for the plaintiff, Grant Square Bank & Trust Company. On July 18, 1977, the Greens executed a promissory note to the Bank. As a part of the same transaction, the Greens executed a security agreement granting the Bank a security interest in a 1977 Toyota pickup and a 197...
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Defendant, tried by jury, was convicted of burglary in the first degree. Defendant was charged with that kind of first degree burglary concerned with unlawful entry, with intent to commit theft, into a building other than a dwelling while being armed with burglar’s tools. 1 There was evidence which, if believed, would have justified only a verdict and conviction of criminal trespass in the seco...
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Defendant appeals his conviction for ex-convict in possession of a firearm. ORS 166.270. He assigns as errors the denial of his motion to suppress evidence seized pursuant to a warrant and his motion to dismiss. We affirm. Pursuant to an arrest warrant, defendant was arrested in his residence on November 4, 1977, for the charges of theft in the first degree and criminal drug promotion. One of t...
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Petitioner, who is presently serving a twenty-year term for Manslaughter in the First Degree, appeals 1 the Board of Parole’s decision denying him administrative review of the Board’s order of October 27, 1980, which reset his release date. We remand. Petitioner has filed a pro se brief which we have found virtually impossible to understand. We take our statement of facts primarily from the...
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This case requires us to interpret the Indian Child Welfare Act: 25 USC § 1901 et seq. (ICWA). The question presented is whether petitioner is an "Indian custodian” within the meaning of 25 USC § 1903(6), which provides: " 'Indian custodian’ means any Indian person who has legal custody of an Indian child under tribal law or custom or under State law, or to whom temporary physical care, custody, a...
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dissenting. Contrary to the majority, I agree with the Board that claimant has not established by credible evidence that he sustained a compensable injury. Further, the record *1047establishes that claimant’s testimony was not credible. Claimant provided inconsistent and conflicting accounts to several different individuals about how the injury allegedly occurred. My examination of the record lead...
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629 P.2d 1326 (1981) 52 Or.App. 1063 STATE of Oregon, Respondent, v. Betty SPRAGUE, Appellant. No. DA 194420-8006; CA 19523. Court of Appeals of Oregon. Argued and Submitted April 29, 1981. Decided June 29, 1981. *1327 David L. Slader, Portland, argued the cause and filed the brief for appellant. R. Wayne Torneby, Certified Law Student, Salem, argued the cause for respondent. With him on the brie...
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On May 27, 1976, Victor (Vic) Gould was found shot to death in Robinswood Park in Bellevue, Washington. His widow sued the Mutual Life Insurance Company of New York (MONY) to collect the proceeds of a life insurance policy under which her husband had been insured. MONY pleaded the affirmative defense of suicide. All parties agree that the insurance policy excludes coverage where the insured com...
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Gregory E. Nielsen and Dale G. Hatcher appeal their convictions for unlawful delivery of a controlled substance. We find that the representation of Nielsen and Hatcher by one attorney deprived both of effective assistance of counsel, reverse the convictions and remand for a new trial. On the morning of July 17,1978, an undercover agent for the Washington State Patrol Drug Enforcement Division m...
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29 Wn. App. 523 (1981) 629 P.2d 1336 J.T. ADAMS, ET AL, Appellants, v. CLOVER PARK SCHOOL DISTRICT NO. 400, ET AL, Respondents. No. 4437-II. The Court of Appeals of Washington, Division Two. June 8, 1981. Richard K. Wilson, for appellants. Bruce W. Cohoe, for respondents. REED, C.J. Joseph T. Adams was employed by the Clover Park School District as a welding instructor during the 1977-78 school y...
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Joseph T. Adams was employed by the Clover Park School District as a welding instructor during the 1977-78 school year. On May 15, 1978, the District sent Adams a letter notifying him that his contract would not be renewed for the 1978-79 school year because he had attained the age of 65 during the 1977-78 fiscal year. The letter read in part: Pursuant to law, the Superintendent of Schools for the...
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The issue here concerns the power of the district court to exercise its discretion to dismiss a charge of violation of RCW 46.52.020, failure to remain at the scene of an accident, under the compromise of misdemeanors statute, RCW 10.22.010. We reverse and remand to the district court for consideration of the motion to dismiss. The defendant-relator, Harold Fitch, was charged in Roxbury District C...
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Facts of Case The defendant, Anthony Michael Saltarelli, appeals his conviction of second degree rape in a case characterized by the prosecuting attorney as a "date and rape" case. The defendant met the victim, a cashier at a Safeway store, during frequent visits to the store in the spring and early summer of 1979. The two became friendly and saw each other socially a few times and had at least on...
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The defendant, James Duane Maesse appeals from a juvenile disposition adjudicating him guilty of second degree arson. The issues presented on appeal are: 1. Is that part of finding of fact No. 6 which states that Officer "Mollendorf received instructions over the radio, which originated in McJunkins, to arrest [Maesse],1' supported by substantial evidence? 2. In determining whether the arre...
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Nationwide Realty Service, Ltd. appeals from a judgment awarded to Penm Financial Services, Ltd. *651for $104,459.86, representing principal and interest on three promissory notes, court costs, and attorney's fees. Both companies are Canadian corporations. The trial court also ordered a mortgage foreclosed on property in Whatcom County owned by Golden Horse Farms, Inc., a Washington corporation. G...
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629 P.2d 1357 (1981) Fred HARTNETT, Appellant (Plaintiff), v. James C. JONES; Cleda V. Whitlock and James Lee Whitlock, co-executors of the Estate of Oscar J. Whitlock, deceased, Appellees (Defendants). No. 5284. Supreme Court of Wyoming. June 19, 1981. W.W. Reeves of Vlastos & Reeves, P.C., Casper, for appellant (plaintiff). *1358 E.L. McCrary, Casper, for appellees (defendants). Before McCL...
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In this appeal, appellant-defendant contends that he was denied effective assistance of counsel in a criminal proceeding in which he was found guilty by a jury of the crime of aggravated robbery. Specifically, appellant contends that the public defender, who represented him at the trial, did not adequately investigate and prepare a “crucial” and “sole” defense premised upon appellant’s lack of me...
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Opinion The complaint here alleges libel and slander during defendants’ (petitioners’) successful campaign for repeal of an ordinance that would have enabled plaintiff (real party in interest) to build a large condominium project in Beverly Hills. Our reading of the complaint persuades us that the publications in question could not reasonably be found libelous and that plaintiffs pleading of a co...
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Opinion The Public Utilities Commission sets minimum rates for intrastate transportation of commodities by highway carriers. Though federal authorities control intrastate motor carrier movement that precedes or follows import or export by common carrier vessel, it is undisputed that the commission has jurisdiction over wholly intrastate movement preceded or followed by movement...
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OPINION This appeal raises a question of first impression in the State of Alaska: whether a general contractor, who, by operation of the contractor-under clause contained in AS 23.30.045(a), has been required to pay workers’ compensation benefits to the employee of an uninsured subcontractor, is an em *1390 ployer for purposes of immunity from common law liability. For the re...
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