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All Reporters → p2d → Volume 689

Opinions in p2d Volume 689

689 P.2d 1 (1984) AMERICAN COAL CO., Emery Mining Corporation, and State Insurance Fund, Plaintiffs, v. Terry W. SANDSTROM, Industrial Commission of Utah, and Second Injury Fund, Defendants. No. 19134. Supreme Court of Utah. May 1, 1984. *2 Fred Silvester, Salt Lake City, for plaintiffs. Virginius Dabney, Gilbert Martinez, Frank V. Nelson, Salt Lake City, for defendants. HALL, Chief Justice: The ...
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This is an appeal from a third degree felony conviction of theft. 1 Defendant assigns the following as error: (1) insufficiency of the evidence; (2) denial of his motion to waive a jury trial; (3) admission of improper evidence during the State’s rebuttal argument; and (4) inclusion of a partial written deposition in the evidence which the jury was permitted to take with them into th...
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This case involves the interpretation of an escrow agreement which was made in connection with a contract for the sale of the Elks Building in Salt Lake City, Utah. Defendant Elks Building, N.V., a Netherlands Antilles corporation (buyer), appeals from and seeks the reversal of the trial court’s judgment which awarded all of the funds placed in escrow at the time of the sale of the building to the...
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Defendants appeal their conviction of distribution of a controlled substance (10 pounds of marijuana) pursuant to U.C.A., 1953, § 58-37-8(l)(a)(ii) (Supp.1983). Defendants argue that (1) the prosecution used or failed to correct false or perjured testimony in violation of their due process rights; (2) the trial court erred in refusing to dismiss two veniremen for cause; and (3) the trial court er...
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689 P.2d 27 (1984) Lynn HASLEM and Joan H. Haslem, Plaintiffs and Appellants, v. Leland B. OTTOSEN; Agnes D. Ottosen, aka Agnes Dot Ottosen; his wife; Leland B. Ottosen Trust; Agnes Dot Ottosen Trust; and Bow Valley Petroleum, Inc., a corporation, Defendants and Respondents. No. 18749. Supreme Court of Utah. September 10, 1984. Arthur H. Neilsen, Clark R. Neilsen, Salt Lake City, for plaintiffs a...
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Bruce and Martha Cockrell allege that the Superior Court erred in denying their motion for change of judge under RCW 4.12.040 and RCW 4.12.050 in their trial for manufacture and possession of a controlled substance and that their right not to be placed twice in jeopardy for the same offense will be violated by a retrial of this case. They also claim that their right to privacy was unreasonably in...
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Ronald Myers appeals from a conviction for possession of heroin with intent to manufacture and deliver. Myers contends that King County police officers illegally used a fictitious arrest warrant to gain entry to his house in order to execute a valid search warrant. The Court of Appeals disagreed with Myers and upheld the seizure. State v. Myers, 35 Wn. App. 543, 667 P.2d 1142 (1983). We affirm. I ...
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This interpleader action involves a dispute between decedent Lawrence Wadsworth's first wife and his wife at the time of his death over the proceeds of a group term life insurance policy. The dissolution decree between the decedent and his first wife purported to transfer all of her interests in all life insurance policies on the decedent's life to him. The first wife, however, remained the nam...
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102 Wn.2d 624 (1984) 689 P.2d 53 LARRY WITTERS, Appellant, v. THE COMMISSION FOR THE BLIND, Respondent. No. 49673-1. The Supreme Court of Washington, En Banc. October 4, 1984. *626 Michael P. Farris of Bill of Rights Legal Foundation, for appellant. Kenneth O. Eikenberry, Attorney General, and David R. Minikel, Assistant, for respondent. PEARSON, J. This appeal involves the denial by the Washingt...
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102 Wn.2d 665 (1984) 689 P.2d 68 FEDERATED AMERICAN INSURANCE COMPANY, Respondent, v. CLYDE STRONG, Petitioner. No. 50228-5. The Supreme Court of Washington, En Banc. October 4, 1984. *666 Ries & Kenison, by Harry E. Ries, for petitioner. Murray, Dunham & Murray, by Matt Murray, for respondent. BRACHTENBACH, J. This is a declaratory judgment action, brought to determine whether an insuran...
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Petitioner Charles Jackson appeals his judgment and sentence on one count of indecent liberties *691and one count of second degree rape. He contends the trial court erred in admitting evidence of a 1974 assault. We find that the trial court erred in not establishing a record and in admitting the prior incident. We find, however, no prejudice to petitioner. I Petitioner's convictions arise from the...
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102 Wn.2d 678 (1984) 689 P.2d 81 THE STATE OF WASHINGTON, Respondent, v. DELBERT W. MILLER, ET AL, Petitioners. No. 49845-8. The Supreme Court of Washington, En Banc. October 11, 1984. *679 Delbert Miller, pro se, and Robert D. Wilson-Hoss (of Wilson-Hoss, Sheldon & Hoss), for petitioners. Gary P. Burleson, Prosecuting Attorney, and L. Frank Johnson, Deputy, for respondent. UTTER, J. This con...
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Ross Harvey Despenza appeals his judgment and sentence for second degree assault. We reverse and remand for a new trial. The victim of a shooting told police that the defendant was the assailant. Defendant was arrested about 2 hours *647 after the incident. He was given Miranda 1 warnings at the time of arrest and again at the police station. He indicated that an attorney would have to be a...
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William F. Groves appeals an order striking his note for trial and prohibiting him from renoting the case until he waives his physician-patient privilege. We hold the physician-patient privilege has been waived and strike the order. Groves was involved in an automobile-motorcycle accident on November 1, 1982. He filed suit against Wahl on November 8, 1982, alleging personal injuries and damages we...
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The question which we shall address in this opinion is that of the constitutional propriety of the enactment of a statute by the legislature prescribing a rule of procedure in civil actions. In a civil action seeking money damages for medical malpractice the district court applied the provisions of § 1-1-114, W.S.1977, which prohibit any allegation of the dollar amount of damages in “the ad dam...
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This case concerns the obligation of the State Certificate of Need Review Board (Board), created by The New Institutional Health Services Act, §§ 85-2-201 through 35-2-214, W.S.1977, to afford a trial-type hearing to one hospital in connection with authorizing the construction of a competing hospital in a neighboring community. We will hold that federal and state statutes require the Board to pro...
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Opinion This court reviews and adopts a recommendation of the State Bar that petitioner Regis Michael Possino be disbarred following his conviction of a crime involving moral turpitude. (Bus. & Prof. Code, §§ 6101, 6102; Cal. Rules of Court, rule 951.) 1 Petitioner was admitted to practice in 1972. He was privately reproved in 1976 for wrongfully causing an employee to make a...
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Opinion Following a jury trial the Superior Court of Ventura County entered a judgment convicting Arthur Manuel Avalos of murder in the second degree with use of a firearm, and of two counts of assault with a deadly weapon, both involving use of a firearm and infliction of great bodily injury. The primary issue presented by this appeal is whether the trial court erred when it (1) instructed the ju...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 188 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 189 OPINION Is a surviving putative spouse entitled to succeed to a share of his or her decedent's separate property...
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*190Opinion Is a surviving putative spouse entitled to succeed to a share of his or her decedent’s separate property under the Probate Code? I. On April 22, 1972, William Garvin and Fay Reah Leslie were married in Tijuana, Mexico. The marriage was invalid because it was never recorded as required by Mexican law.1 However, Garvin believed that he and Leslie were validly married. The couple lived t...
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OPINION Tommie G. Patterson was convicted, following a jury trial, of sexual assault in the first degree, kidnapping, three counts of assault in the third degree, and one count of assault in the fourth degree. He received a composite sentence on these convictions of forty-one years. He appeals his convictions and his sentence to this court. We affirm Patterson’s conviction but reverse his sente...
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For his participation in the robbery of a Village Inn Pizza restaurant in Mesa, Arizona, appellant-respondent Billy Don Lee was convicted on May 11, 1981 of aggravated robbery in violation of A.R.S. § 13-1903(A) and sentenced to twenty years imprisonment. The primary question on appeal is whether trial counsel’s acquiescence in appellant’s demand that he call witnesses whose veracity and credibili...
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142 Ariz. 223 (1984) 689 P.2d 166 STATE of Arizona, Appellee, v. Richard Elroy JOHNSON aka Seavey Harold Johnson aka Harold Seavey Johnson, Appellant. No. 6159-PR. Supreme Court of Arizona, In Banc. October 11, 1984. Robert K. Corbin, Atty. Gen., William J. Schafer III, Chief Counsel, Criminal Div., Jessica Gifford, Asst. Atty. Gen., Phoenix, for appellee. Peter S. Balkan, Phoenix, for appellant....
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OPINION Appellant Billy Don Lee was tried to a jury and found guilty of aggravated robbery, a class 3 felony, in violation of A.R.S. § 13-1903(A). He admitted the allegations of two prior felony convictions and was *228 sentenced to the maximum term oí 220 years imprisonment. He then appealed from the judgment and sentence and also sought post-conviction relief pursuant to Rule 32, Rules of C...
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*233OPINION May a criminal defendant who pleads guilty and admits the existence of two pri- or convictions for the purpose of enhancement of punishment, attack on appeal the sufficiency of the evidence to support the prior convictions? This is the issue raised by this appeal. The defendant-appellant, Richard Elroy Johnson, was originally charged by indictment in Cause CR-108328 with one count of b...
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OPINION This action relates to a subdivided town-home development in Tucson and the effect of a revision to the original subdivision plot and amendment to the declaration of covenants, conditions and restrictions. In 1973 Tom Kennedy and his wife purchased from Ted Bloodworth some land in Tucson which had frontage on East Broadway, a main east-west traffic artery. The Kennedys subdiv...
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OPINION This is an appeal by Barry Paul Levine, the natural father of the juvenile. The *241 specific question raised in this appeal is whether the father was given a proper hearing before his parental rights were severed. The facts pertinent to a resolution of this case, as presented to the trial court, are set out below. The appellee, Ivy Leslie (Levine) Segal, the natural mother of the j...
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OPINION Arizona Security Center (hereafter referred to as Security Center) brought this action against the State of Arizona to enforce a lease agreement involving the installation and maintenance of a security alarm system in a new building which was to be occupied by the Arizona Corporation Commission. The sole issue presented on appeal is whether the contract is void on the grounds that the s...
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OPINION Appellant was tried to a jury, convicted, of escape and given a mitigated, consecutive sentence of four years’ imprisonment. On appeal he challenges his conviction contending that the jury was improperly instructed and that the trial court erred in not granting his motion for acquittal. Appellant was an inmate in the north unit, outside trustee area, at the Arizona State Prison at Flo...
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142 Ariz. 250 (1984) 689 P.2d 193 Cyril James WARRILOW, as representative underwriter of those Underwriters at Lloyds Subscribing Master Policy, POP 100-82; North American Claims Management Company; Kirke-Van Orsdel, Inc.; Kirke-Van Orsdel Insurance Services, Inc.; and National Rifle Association, Petitioners, v. SUPERIOR COURT OF the STATE OF ARIZONA, In and For the COUNTY OF PIMA; Honorable Lina...
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689 P.2d 199 (1984) Marilyn A. MASON, Individually and as Personal Representative of the Estate of Michael D. Mason, Deceased, and as next friend of Christopher Lee Mason, a minor, Plaintiffs-Appellants, v. STATE of Colorado, Colorado Board of Parole, Gordon W. Heggie, individually and as Chairman of the Board of Parole, Daniel Grove, individually and as Vice-Chairman of the Colorado Board of Par...
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*305 OPINION OF THE COURT BY In No. 8383, John William Pieper James (James) appeals from the land court order which divests his interest in certain real property. In No. 9262, Robert Leroy Reed (Reed) appeals from the judgment which cancels his interest in the same property as a purchaser under an agreement of sale. Both the order and the judgment are in favor of Robert Frank Con...
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*320ON DENIAL OF PETITION FOR REHEARING This opinion supersedes our prior opinion issued May 17, 1984 which is hereby withdrawn. Fire destroyed a log skidder that Gary Breeden had sold on a conditional sale note. He brought this suit to recover the balance due on the purchase price. R.I. Heuett, the buyer’s successor-in-interest, filed a counterclaim for damages, alleging Breeden had breached an o...
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In this divorce case Steve Bailey challenges the trial court’s division of the community estate and the awards of child support and attorney fees to his wife, Hilda. Because the record does not disclose adequate findings and reasons for the trial judge’s rulings on these points, we vacate the divorce decree in part and remand the case for further proceedings. This lawsuit began when the wi...
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We are asked in this case to determine the liability of a real estate vendor for payment of a broker’s commission when the purchaser produced by the broker defaults on the land sale contract after the transaction is closed. The broker brought the purchasers and sellers together, and they entered into an agreement by which the purchasers obligated themselves to pay for the property over a period o...
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The proprietors of an appliance store have appealed a judgment in favor of consumers who sued for the malfunction of a food freezer. The consumers, Michael and Debra Verbillis, claimed that the malfunction occurred when a compressor installed by the store, and expressly warranted for one year, failed less than four months later. The store, Dependable Appliance, denied the claim and broadly alle...
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689 P.2d 230 (1984) 107 Idaho 338 CHALLIS IRRIGATION COMPANY, an Idaho corporation, Glendon Hunt, Gary Chamberlain, and Ralph Anderson, Plaintiffs-Respondents, v. STATE of Idaho, Defendant-Appellant. No. 13531. Court of Appeals of Idaho. May 22, 1984. Rehearing Granted August 10, 1984. Upon Rehearing October 15, 1984. Petition for Review Denied December 21, 1984. *232 Jim Jones, Atty. Gen. by Ste...
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delivered the Opinion of the Court. Robert Lee Norris was convicted in the District Court, Yellowstone County, Thirteenth Judicial District, on jury verdict of two counts of sexual intercourse without consent and one count of aggravated kidnaping. On consideration of his appeal from these convictions, we affirm. The principal issues raised by Norris on appeal are that the District Court had i...
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delivered the Opinion of the Court. The petitioners, Lawrence and Thelma Liebman, appeal from an order of the Silver Bow County District Court dismissing their petition for a writ of mandamus. The writ was sought to compel the City-County of Butte-Silver Bow, or in the alternative, the City of Walkerville, to declare the premises adjacent to petitioners’ a public nuisance, and abate the same. T...
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delivered the Opinion of the Court. Terri S. Keating (wife) appeals from the order of the District Court of Yellowstone County, awarding custody of the two minor children to John Wayne Keating (husband) and dividing the parties’ marital estate. We affirm in part and reverse in part the order of the District Court. The following issues are presented on appeal: 1. Whether the District Court a...
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delivered the Opinion of the Court. Appellant, Steven J. Fox, was convicted by a jury in the Sixth Judicial District, Park County, of felony theft. The Honorable Byron L. Robb sentenced appellant to four years at the Montana State Prison in Deer Lodge with dangerous offender status. From that conviction he now appeals. We affirm. Issues (1) Whether the District Court abused its discretion...
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delivered the Opinion of the Court. In an action by First National Bank to have Powells vacate their family residence pursuant to a foreclosure sale on a trust indenture, the Eighteenth Judicial District Court entered a judgment in favor of the Bank. Powells appeal. We affirm. Robert Powell, a real estate appraiser in Bozeman, and Victory Powell, the owner of a mortgage firm, Treasure...
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delivered the Opinion of the Court. This is an appeal from an order of the District Court of the Eleventh Judicial District, Kalispell, Montana, denying petitioner’s motion for disqualification of the trial judge for bias, and assessing costs and attorney fees. Respondent did not file a brief with this Court. We affirm in part and reverse in part. On August 31, 1983, Gerald Lawrence Gahr filed a p...
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delivered the Opinion of the Court. *501 This is an appeal from the final judgment entered in the District Court of the Fifteenth Judicial District, State of Montana, in and for the County of Roosevelt, dividing the marital assets of the parties. The husband appeals. The parties were married on January 23, 1950, at Poplar, Montana. There were four children born of the marriag...
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delivered the Opinion of the Court. This is an appeal from a judgment entered by the District Court of the Thirteenth Judicial District, Yellowstone County. The plaintiffs, Gary and Diana Gray, challenge (1) the validity of a subdivision improvement agreement entered into between the Grays and defendant, City of Billings, and (2) the legality of a special improvement district formed u...
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delivered the opinion of the Court. Louis Dallas brought an action in the Eighth Judicial District Court pursuant to the Federal Employers’ Liability Act (FELA) seeking damages for personal injuries sustained during the course of his employment with Burlington Northern, Inc. (BN). Following jury trial a verdict was returned in favor of plaintiff in the amount of $477,000. Burlington Northe...
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delivered the Opinion of the Court. Defendant and appellant, Denise S. Peppard appeals the October 26, 1983, order of the Seventh Judicial District Court of Montana, Richland County, granting plaintiff Sarah Garza’s motion for judgment notwithstanding the verdict on the issue of negligence and granting Garza a new trial on the issues of proximate cause and damages. We affirm the order of the Di...
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689 P.2d 281 (1984) In the Matter of R.M.B., Youth in Need of Care. No. 84-234. Supreme Court of Montana. Submitted on Briefs July 27, 1984. Decided October 16, 1984. Morrison, Barron & Young; Dennis G. Loveless, Havre, for appellant. David G. Rice, Deputy County Atty., Waldo Spangelo, Havre, for respondent. GULBRANDSON, Justice. L.B. appeals from an order of the District Court of the Twelfth...
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delivered the Opinion of the Court. L.B. appeals from an order of the District Court of the Twelfth Judicial District, Hill County, terminating the parent-child relationship between L.B. and R.M.B. and awarding permanent custody of the youth to the Montana Department of Social and Rehabilitation Services. We affirm the order of the District Court. L.B., the appellant, is the natural mother of R.M....
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689 P.2d 286 (1984) 101 N.M. 770 Mary Seeley ALONZO, Petitioner-Appellant, v. NEW MEXICO EMPLOYMENT SECURITY DEPARTMENT and Baldridge Lumber Company, Respondents-Appellees. No. 14942. Supreme Court of New Mexico. October 12, 1984. Chris Coppin, Albuquerque, for petitioner-appellant. Richard Baumgartner, Albuquerque, for respondents-appellees. OPINION SOSA, Senior Justice. Plaintiff-appellant Mar...
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OPINION FACTS: Plaintiff-Appellant/Cross-Appellee Mark Paternoster (plaintiff) sustained an accidental injury to his left hand while operating a table saw in the cabinet shop of DefendantAppellee/Cross-Appellant La Cuesta Cabinets, Inc. (La Cuesta). Insurer, DefendantAppellee/Cross-Appellant Rockwood Insurance Company (Rockwood) (collectively, defendants), timely paid plaintiff compe...
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689 P.2d 299 (1984) James L. SHORES, as Executor of the Estate of Clarence E. Bishop, Deceased, Ronald Ham and John D. Churchwell, on their own behalf and on behalf of all persons similarly situated, Appellees, v. FIRST CITY BANK CORP., formerly known as City National Bank and Trust Company of Oklahoma City, a National Banking Association, Appellant. No. 58244. Supreme Court of Oklahoma. October ...
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The issue presented is whether the decedent’s will directs the payment of estate taxes from her residuary estate rather than apportioned among those taking under the will, as prescribed by statute. • Ruby Fullerton died testate on March 21, 1981. In the course of the administration of her estate, the Executor appointed pursuant to her will, the Citizen’s National Bank and Trust Company of Musko...
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Claimant White filed a belated claim for workmen’s compensation benefits. Employer and its workers’ compensation insur*313er pleaded the statute of limitations.1 The trial court held the statute of limitations had been tolled by virtue of 85 O.S. 1981, § 8. An en banc panel of the Workers’ Compensation Court affirmed and Employer appealed. We now review by certiorari an opinion of the Court of App...
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The State Insurance Fund filed suit against various corporations and individuals to recover premiums due on a workers’ compensation insurance policy. The only issue in this appeal concerns the individuals who were directors and officers of the corporate defendants. The Fund seeks judgment against the individuals because of the corporations’ suspensions for failure to pay the Oklahoma Franchise Tax...
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In this personal injury action, plaintiff alleged that he slipped on foreign material on the floor of defendant’s grocery store and fell. The court granted defendant’s motion for summary judgment. Plaintiff appeals, and we affirm. Plaintiff alleged that defendant was negligent in one or more of the following particulars: “a. That Defendant or its agents placed the foreign material on the floor. “b...
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Defendant appeals her conviction for driving while under the influence of intoxicants, contending that the trial court erred in denying her pretrial motion to suppress certain statements made by her at the scene of the investigation and before she was advised of her Miranda rights. She also contends that former ORS 487.540(1)(a), making it unlawful for a person with a .10 percent blood-alcohol ...
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Petitioner seeks review of a final order of the Portland Metropolitan Area Local Government Boundary Commission (Commission) approving the proposed annexation of certain unpopulated territory contiguous to its members’ property. It contends that, because the approved proposal deliberately creates an “island” of its members’ property, thereby subjecting it to summary annexation pursuant to ORS 222...
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Claimant appeals an order of the Workers’ Compensation Board, claiming that he is permanently and totally disabled. We agree and reverse. Claimant suffered a compensable injury to his lower back and left leg in August, 1978, for which he underwent a lumbar laminectomy. A determination order awarded him temporary total disability and 15 percent unscheduled disability. Although the employer never co...
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Multnomah County School District No. 1 (district) has petitioned for reconsideration and review of our decision in Laughlin v. School Dist. No. 1, 69 Or App 63, 686 P2d 385 (1984), contending that a part of our decision conflicts with Smith, v. Robinson, 468 US_, 104 S Ct 3457, 82 L Ed 2d 746 (1984), decided within a few days of our decision. We allow the petition and adhere to our decision. The d...
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Plaintiff, mortgagee, brought this action to foreclose its mortgage after defendants Zandol, mortgagors, sold the mortgaged real property on contract to defendant Smith. Defendant U.S. Creditcorp cross-claimed to foreclose its second mortgage on the real property; it and the Zandols stipulated that if plaintiff is entitled to foreclosure, so is U.S. Creditcorp. From a judgment foreclosing both mor...
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SAIF appeals from an order of the Workers’ Compensation Board. It contends that the Board erred in affirming the referee’s order that the back condition for which claimant received treatment in 1981 is compensable and that SAIF is responsible, in affirming the referee’s award of interim compensation, and in awarding a penalty and attorney fees for unreasonable failure to pay temporary total disabi...
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Respondent moves to dismiss the appeal because the judgment of the reference judge was not entered as a judgment of the circuit court pursuant to Or Laws 1983, ch 704, § 4(6). We allow the motion. The presiding judge of the circuit court approved the stipulation of the parties and ordered that a reference judge be appointed. The stipulation provides in part: “The parties stipulate to the entry of ...
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In this workers’ compensation case claimant appeals the denial of a penalty and attorney fees for unreasonable delay in the closure of his claim and the payment of permanent partial disability. ORS 656.262(10). We reverse. Claimant was injured on September 22, 1980, in the course of his work for respondent, a self-insured employer. On April 13,1981, he returned to his regular work. On November ...
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Claimant petitions for review of an order of the Workers’ Compensation Board, which failed to award claimant insurer-paid attorney fees for unreasonable refusal to pay time loss benefits. We reverse on that issue and otherwise affirm.1 Claimant incurred a compensable injury to her back in August, 1981, while driving a front-end loader on rough roads. Because her employer immediately put her to wor...
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concurring in part. I join in so much of the majority opinion as is necessary to explain our reversal of the trial court’s decree on grounds that the party appearing as petitioner below lacked legal capacity to seek the judicial relief in question. I express no opinion as to the merits, which we need not — and, therefore, should not — reach....
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Defendant, having pled guilty to the misdemeanor crime of driving under the influence of intoxicants, ORS 487.540, seeks to have his probationary sentence set aside on the ground that he has the absolute right to reject probation and to insist on a sentence of straight incarceration. Because defendant’s position is directly contrary to specific sentencing powers granted to this state’s trial cour...
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Defendant City of Eugene appeals from a judgment in which it was found liable under 42 USC § 1983 (1982),1 for refusing to issue a ballot title to refer to the city’s voters an ordinance adopted by the Eugene City Council. Defendant assigns as error the following rulings of the trial court: (1) granting plaintiff partial summary judgment on the issue of whether the ordinance was subject to a refer...
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689 P.2d 360 (1984) Charles H. STRATFORD and Robert L. Harris, Plaintiffs and Appellants, v. Earl P. MORGAN, Earl D. Morgan, Gloria M. Broadbent, Evelyn M. Neveille and Alice M. Timmerman, Defendants and Respondents. No. 18306. Supreme Court of Utah. August 30, 1984. *361 David E. West, Salt Lake City, for plaintiffs and appellants. Thomas A. Duffin, Salt Lake City, for defendants and respondents...
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This case concerns whether plaintiffs, allegedly injured by the drug diethylstilbestrol (DES), have a cause of action against numerous DES manufacturers when they cannot identify the specific manufacturer of the DES ingested. The trial court held that plaintiffs had stated a cause of action when it denied summary judgment as to two drug manufacturers, finding material issues of fact under a theory...
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Petitioner Theodore Rinaldo seeks reversal of the decision of the Court of Appeals which vacated the trial court's discovery order compelling in camera inspection of the files of The Herald (formerly The Everett Herald) which allegedly contain materials useful for his criminal defense. The type and scope of privilege a newspaper and its reporter may have to withhold confidential information from a...
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102 Wn.2d 761 (1984) 689 P.2d 399 MARK F. ANDREWS, JR., ET AL, Petitioners, v. RALPH MUNRO, as Secretary of State, ET AL, Respondents. No. 50398-2. The Supreme Court of Washington, En Banc. October 18, 1984. *762 Lane, Powell, Moss & Miller, by Thomas S. Zilly, Raymond W. Haman, Wilbur J. Lawrence, and Daniel M. Hendrickson, for petitioners. Kenneth O. Eikenberry, Attorney General, and Edward...
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38 Wn. App. 699 (1984) 689 P.2d 404 JAMES A. LEE, Appellant, v. JULIETTE SAUVAGE, Respondent. No. 12677-6-I. The Court of Appeals of Washington, Division One. September 24, 1984. Nelson & McCarthy, P.S., Rodney T. Harmon, and Clinton H. Hattrup, for appellant. Sax & MacIver and Lawrence B. Ransom, for respondent. DURHAM, C.J. James Lee appeals from the denial of his motion for judgment no...
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Consolidated appeals by Randy Bruce Upward, one challenging his conviction for operating a motor vehicle while his license was revoked in violation of RCW 46.65.090 1 and the other challenging the denial of a writ of mandamus to direct the Department of Licensing to issue him a driver's license, raise but one issue: whether an adjudication that one is a habitual offender as defined in the Washi...
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Appellant was convicted by a jury of involuntary manslaughter. Because his status was also determined by the jury to be that of an habitual criminal, his sentence was enhanced to life imprisonment. According to appellant the issues are: “I. Whether Appellant’s constitutional right to due process of law was abridged by the trial court’s refusal to instruct the jury regarding the burden of p...
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37 Cal.3d 136 (1984) 689 P.2d 430 207 Cal. Rptr. 800 THE PEOPLE, Plaintiff and Respondent, v. MARCELINO RAMOS, Defendant and Appellant. Docket No. Crim. 21352. Supreme Court of California. November 1, 1984. *141 COUNSEL Alan M. Caplan, under appointment by the Supreme Court, Bushnell, Caplan, Fielding & Rudy, Quin Denvir, State Public Defender, Ezra *142 Hendon, Alice V. Collins and Diane M. ...
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Opinion In our recent decision in American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359 [204 Cal.Rptr. 671, 683 P.2d 670], *177we reviewed a wide-ranging constitutional challenge to one provision of the Medical Injury Compensation Reform Act of 1975 (MICRA), a section which authorized the periodic payment of damages in medical malpractice actions. (Code Civ. Proc., § 667.7.) We con...
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37 Cal. 3d 205 (1984) 689 P.2d 453 207 Cal. Rptr. 823 PATRICIA MacGREGOR, Plaintiff and Respondent, v. UNEMPLOYMENT INSURANCE APPEALS BOARD, Defendant and Appellant; EMPLOYMENT DEVELOPMENT DEPARTMENT et al., Real Parties in Interest and Respondents. Docket No. S.F. 24706. Supreme Court of California. November 8, 1984. *207 COUNSEL George Deukmejian and John K. Van de Kamp, Attorneys General, Char...
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OPINION I. In the spring of 1982, the Mayor of the Fairbanks North Star Borough (Borough or *461 FNSB) introduced an ordinance that, among other things, raised the rate at which real property in the College Service Area 1 was to be taxed. 2 In previous years the rate had been set at zero mills; the ordinance raised that rate to one mill. 3 Notice of the proposed ordinance was publishe...
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OPINION Before BURKE, C.J., and RABINOW-ITZ, MATTHEWS, COMPTON and MOORE, JJ. In this case, a default judgment in the amount of $19,960 was entered. Harry Case unsuccessfully sought Civil Rule 60(b) relief and appealed. We reverse. I. Appellant Harry Case (hereinafter “Harry”) and Appellee Patsy (Case) Winters (hereinafter “Patsy”) were granted an interlocutory divorce in 1973. Patsy was granted t...
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689 P.2d 472 (1984) K.T.E., Appellant, v. STATE of Alaska, Appellee. No. S-50. Supreme Court of Alaska. September 28, 1984. *473 Salvatore Iacopelli, Terri-Lynn Coleman, Coleman & Iacopelli, Fairbanks, for appellant. D. Rebecca Snow, Asst. Atty. Gen., Fairbanks, Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Mary E. Greene, Asst. Public Defender, Fairbanks, Dana Fabe, Public Defender, A...
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*474OPINION This is an appeal from the superior court where the parental rights of a mother (referred to in this appeal as “K.T.E.”) were terminated. K.T.E. argues that the superi- or court improperly placed the burden of proof on her, rather than the State, and thus violated her statutory and due process rights. K.T.E. also argues that the superi- or court erred in allowing the State to prevent K...
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689 P.2d 478 (1984) Edward Joel ROSEN, CPA., Appellant, v. STATE BOARD OF PUBLIC ACCOUNTANCY and Division of Occupational Licensing, Appellees. No. S-94. Supreme Court of Alaska. October 5, 1984. *479 A. Lee Petersen, A. Lee Petersen, Inc., Anchorage, for appellant. Richard D. Monkman, Asst. Atty. Gen., Anchorage, Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. *480 Before BURKE, C.J., and R...
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OPINION This appeal arises out of an inverse condemnation action filed by the First National Bank of Anchorage (Bank) when the State of Alaska increased the width of the Old Glenn Highway on land owned by the Bank. The superior court granted the Bank’s motion for summary judgment on the issue of liability, concluding that the State possessed an easement only forty feet wide along the road...
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689 P.2d 487 (1984) Martin DEUBELBEISS, Appellant, v. COMMERCIAL FISHERIES ENTRY COMMISSION, Appellee. No. 6494. Supreme Court of Alaska. October 12, 1984. Martin Friedman, Homer, for appellant. Wilson L. Condon, Atty. Gen., and John B. Gaguine, Asst. Atty. Gen., Juneau, for appellee. Before BURKE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and MOORE, JJ. OPINION MOORE, Justice. In this case an uns...
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OPINION Van Travelstead was convicted, based upon his plea of nolo contendere, of attempted murder in the first degree, AS 11.41.100 and AS 11.31.100. Travelstead appeals, arguing that the charges against him should be dismissed because he was allegedly deprived of his right to a speedy sentencing, that the trial court erred in not letting him withdraw his nolo contendere plea, and that his...
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OPINION Michael L. Beckman was convicted of escape in the second degree, former AS 11.56.310(a)(1)(B). Beckman appeals, contending that the trial court erred in failing to dismiss his indictment and in improperly instructing the jury concerning the elements of the offense. We reverse. FACTS Beckman was originally convicted of passing forged checks. Superior Court Judge Milton M. Souter sent...
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*505 OPINION Carl Isaac Jimmy, Jr., was originally charged with murder in the first degree, AS 11.41.100(a)(1). He subsequently entered a nolo contendere plea to the lesser offense of murder in the second degree, AS 11.41.110. Superior Court Judge Christopher R. Cooke sentenced Jimmy to serve fifty years in prison, with twenty-five years suspended. Jimmy appeals, contending that the sentenc...
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OPINION Sophia Jacko was convicted, based upon her plea of no contest, of two counts of assault in the second degree, AS 11.41.-210(a)(2).1 Judge Victor D. Carlson sentenced Jacko to two five year concurrent sentences. Jacko appeals these sentences to this court, arguing that they are excessive. We reverse. On April 17,1983, Sophia Jacko was driving on International Airport Road in Anchorage. She ...
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OPINION Ignatius Gregory was convicted of murder in the second degree, an unclassified felony, in violation of AS 11.41.110(a)(1). He received the maximum sentence of ninety-nine years, which was made consecutive to a three and one-half year sentence imposed on revocation of probation on a prior conviction for assault with a dangerous *509 weapon. Gregory therefore faces a composite sentence ...
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OPINION Victor Nickolas was convicted, based upon his plea of no contest, of importation of alcohol, AS 04.11.496(b), 1 a class A misdemeanor. AS 04.16.200(e). 2 Judge Gerald J. Van Hoomissen sentenced Nickolas to serve eight months in jail and to pay a fine of $1,000. Nickolas appeals this sentence to this court. We reverse. Nickolas is an air taxi operator. He flew passengers who had al...
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OPINION Mario Figueroa entered a plea of no contest to a charge of assault in the second degree, AS 11.41.210(a)(1). Superior Court Judge James Blair sentenced Figueroa to four years’ imprisonment with two years suspended. The written judgment further ordered that Figueroa complete two years of probation. Figueroa appeals, contending that his trial counsel was ineffective. He also challenges as...
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LeFon Edward Prince (appellant) was charged by indictment with burglary in the second degree, a class three felony, and theft of property with a value greater than $100, a class four felony. See A.R.S. §§ 13-1507 and 13-1802. An eight-member jury convicted appellant of both offenses and then found that appellant had one prior conviction. The trial court sentenced appellant to 15 years imprisonm...
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142 Ariz. 260 (1984) 689 P.2d 519 STATE of Arizona, Appellee, v. Walter Thomas BOLT, Appellant. No. 6139-PR. Supreme Court of Arizona, En Banc. September 26, 1984. *262 Robert K. Corbin, Atty. Gen. by Bruce M. Ferg, Tucson, for appellee. Hirsh & Fines by Robert J. Hirsh, Michael B. Bernays, L. Anthony Fines, Tucson, for appellant. FELDMAN, Justice. Walter Thomas Bolt (defendant) was convicted...
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142 Ariz. 273 (1984) 689 P.2d 532 Michael John MURPHY, Petitioner, v. SUPERIOR COURT of the State of Arizona In and For the COUNTY OF MARICOPA, the Honorable Dorothy M. Carson, a Judge thereof, and the State of Arizona, Real Parties in Interest, Respondents. No. 17314-SA. Supreme Court of Arizona, En Banc. September 26, 1984. Reconsideration Denied November 6, 1984. *274 Kenneth D. Freedman, Phoe...
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This is a special action arising from the granting of defendant’s motion to strike the state’s allegation of prior convictions pursuant to A.R.S. § 13-604. We have jurisdiction under Article 6, § 5 of the Arizona Constitution. The state’s petition raises only one question: May enhancement of punishment pursuant to A.R.S. § 13-604(A) be based on separate offenses, committed on separate occasions...
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OPINION Only one question needs to be answered in this appeal. Was it fundamental error requiring reversal for the appellant to be tried by an eight-person jury when he was entitled to a jury of 12? We hold that it was and reverse. The defendant was charged with both burglary and theft, each with three prior- felony convictions. The maximum sentences with the priors were 20 years on the burglary a...
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OPINION Appellant, convicted by a jury of sale of marijuana, unlawful possession of marijuana and conspiracy to commit a class 2 felony (sale of marijuana), was placed on concurrent three-year terms of probation. He contends the trial court erred in (1) denying his motion to suppress the evidence; (2) failing to grant him an evidentiary hearing on his claim that the affidavit in support of the sea...
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OPINION Appellant filed this appeal from his conviction on one count of collection of extensions of credit by extortionate means, a class four felony in violation of A.R.S. § 13-2304, following a trial by jury. The state filed allegations of prior convictions, and appellant admitted two prior felony convictions. He was sentenced to serve the presumptive term of ten years, with presentence incarcer...
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OPINION This is an appeal from the trial court’s order revoking appellant’s probation and imposing a five year sentence of imprisonment. Counsel for appellant has filed an appeal in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Powell, 5 Ariz.App. 51, 423 P.2d 127 (1967), and requests this court to search the record for fundamental err...
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OPINION This appeal arises out of a summary judgment foreclosing a deed of trust. The *300 action was filed when the appellant failed to make a payment of principal and interest due on the note secured by the deed. The payment was due on September 15, 1983 in the total amount of $238,531. The payment was to be made to the collection agent Lawyers Title of Arizona who notified...
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dissenting. Arizona has recognized that the legislature sets sentencing limits and delegates the authority to control the sentence, within those limits, to the courts and the executive branch. State v. Pakula, 113 Ariz. 122, 547 P.2d 476 (1976). The criminal code spells out whether conduct is criminal and prescribes the range and variety of penalties and conditions for their imposition. Unlike the...
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142 Ariz. 307 (1984) 689 P.2d 566 In re the Marriage of Kerryn Louise Numkena LEON, Petitioner-Appellant, v. Alan NUMKENA, Respondent-Appellee. No. 1 CA-CIV 6531. Court of Appeals of Arizona, Division 1, Department A. August 7, 1984. Review Denied October 23, 1984. *308 Hunt, Stanley, Hossler & Rourke, Ltd. by H. Berkeley Rourke, Yuma, for petitioner-appellant. Mangum, Wall, Stoops & Ward...
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142 Ariz. 311 (1984) 689 P.2d 570 STATE of Arizona, Appellee, v. Curtis Lee ENNIS, Appellant. No. 1 CA-CR 6982. Court of Appeals of Arizona, Division 1, Department A. October 2, 1984. *312 Robert K. Corbin, Atty. Gen. by William J. Schafer III, Chief Counsel, Criminal Div., Georgia B. Ellexson, Asst. Atty. Gen., Phoenix, for appellee. Claude D. Keller, Kingman, for appellant. OPINION BROOKS, Pres...
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The People brought this interlocutory appeal pursuant to C.A.R. 4.1 challenging an order of the trial court granting defendants’ motions to suppress certain tangible evidence and statements. We reverse and remand. I On February 15, 1983, four members of the Pueblo Police Department and two Pueblo County deputy sheriffs executed a search warrant issued that day to search premises described as “544 ...
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689 P.2d 585 (1984) Sophie H. MEYER and Kenneth Meyer, Petitioners, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent. FARMERS INSURANCE EXCHANGE, a reciprocal or inter-insurance exchange, Plaintiff-Appellee, v. Clara AGUIRRE and Porfirio Aguirre, Defendants-Appellants. Marianne I. ADCOCK and John R. DeCrescentis, Plaintiffs-Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPAN...
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689 P.2d 594 (1984) PUEBLO WEST METROPOLITAN DISTRICT, City of Florence, and St. Charles Mesa Water Association, Appellants, v. SOUTHEASTERN COLORADO WATER CONSERVANCY DISTRICT, Appellee. No. 82SA225. Supreme Court of Colorado, En Banc. October 22, 1984. *596 Robert F.T. Krassa, P.C., Robert F.T. Krassa, Pueblo, for appellants. Fairfield & Woods, Charles J. Beise, Howard Holme, Kevin B. Pratt...
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The protestants, Pueblo West Metropolitan District, City of Florence, and St. Charles Mesa Water Association (“protestants”), appeal1 orders of summary judgment entered against them by the Division No. 2 water court on their protest to the entry of partially absolute decrees for storage of water in Pueblo Reservoir and Turquoise Lake. We affirm the judgment. I. For many years the Arkansas River an...
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689 P.2d 603 (1984) The CITY OF AURORA, By and on Behalf of the PEOPLE of the State of Colorado, Petitioner, v. Shannon Noel RHODES, Respondent. No. 82SC174. Supreme Court of Colorado, En Banc. October 22, 1984. *605 Patrick E. Kowaleski, Stephen R. Ruddick, Aurora, for petitioner. *606 Ralph B. Rhodes, Denver, for respondent. Eileen A. Muench, Patricia C. Tisdale, Arvada, for amicus curiae City ...
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The District Court of Arapahoe County reversed a judgment of conviction for careless driving entered by the municipal court of the City of Aurora because of the municipal court’s refusal to exclude from the jury those prospective jurors who resided within the city limits but did not live within that part of the city located in Arapahoe County, the county in which the offense allegedly took place. ...
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The City of Aurora appeals from a judgment granting Douglas Kinney’s petition for a writ of habeas corpus under section 13-45-101(1), 6 C.R.S. (1973). 1 The Arapahoe County District Court determined that the Aurora City Jail is not a “common jail” as that phrase is used in section 13-45-111, 6 C.R.S. (1983 Supp.), which governs the removal and transfer of prisoners, and therefore county jail pr...
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689 P.2d 617 (1984) COLORADO HEALTH FACILITIES REVIEW COUNCIL, Petitioner, Swedish Health Corporation, Co-Petitioner, v. DISTRICT COURT In and For the CITY AND COUNTY OF DENVER, and the Honorable Daniel B. Sparr, District Court Judge, Respondents. COLORADO BOARD OF HEALTH, Petitioner, Swedish Health Corporation, Co-Petitioner, v. DISTRICT COURT In and For the CITY AND COUNTY OF DENVER, and the Ho...
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In this original proceeding, we issued a rule to show cause why a complaint filed in Denver District Court by several Denver hospitals requesting interlocutory review of a Colorado Board of Health (board of health) order should not be dismissed for lack of subject matter jurisdiction. The respondent district court denied the board’s motion to dismiss the hospitals’ complaint and retained jurisdict...
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The appellants challenge the constitutionality of the “Control of Drug Paraphernalia” Act (the Act), section 12-22-501 to 506, 5 C.R.S. (1983 Supp.). They present two grounds for invalidating the Act as unconstitutional: (1) it violates the due process clause of the United States Constitution and the Colorado Constitution due to over-breadth and vagueness; and (2) it violates their rights to a pub...
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Plaintiff landowners seek to halt a major residential and industrial development proposal for northern El Paso County. They appeal a C.R.C.P. 106(a)(4) determination by the district court which upheld two rezoning applications submitted by defendant developers and approved by defendant Board of County Commissioners of El Paso County. We affirm. In 1981 the developers submitted to the El Paso Count...
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Geneva Van Hee was found dead in the passenger’s seat of her car on December 26, 1977. She died as a result of a single bullet wound to the head. Alfred Madson was charged and convicted by a jury of murder in the first degree. He appeals and we affirm. This case has twice previously been the subject of appeal. People v. Madson, 196 Colo. 507, 586 P.2d 1338 (1978) (interlocutory appeal from su...
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Defendant, Melvin W. Nave, appeals from his conviction for theft over $200. We affirm. On January 26, 1982, at about 9:45 p.m., the victim returned to his home in Denver *647 to find that it had been broken into, ransacked, and that various stereo and camera equipment and coins had been stolen. At about 10:00 p.m., Denver police officers Larry Clay and Horace McGilberry responded to the victi...
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Plaintiff, Carmen Alessi, appeals the judgment of quiet title entered by the trial court in favor of defendants, Charles and Margaret Hogue, upon their counterclaim. Defendants cross-appeal the trial court’s denial of their post-judgment claim for attorney fees under § 13-17-101, et seq., C.R.S., incurred in defense of plaintiff’s claim for libel and slander. We affirm in part, reverse in part, a...
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Plaintiff appeals the judgment of dismissal entered by the trial court in this action filed pursuant to § 24-4-106, C.R.S. We affirm. On May 17, 1982, the Property Tax Administrator (PTA) executed a “notice of revocation of exemption” wherein it was determined that certain real property of the plaintiff failed to qualify for continued exemption from general taxation. Section 39-2-117(3), C...
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Raymond P. Martinez appeals from jury convictions of two counts of second degree burglary and of three habitual criminal counts. He argues five separate grounds for reversal: 1. that evidence seized from his person and his car at the time of his arrest should have been suppressed based upon his contention that the arrest was made without probable cause; 2. that the jury was permitted to consi...
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Petitioner Royal Globe Insurance Company seeks review of a final order of the Industrial Commission holding it liable for payment of benefits and medical expenses awarded claimant Josie R. Collins. At issue here is whether Royal Globe or Potomac Insurance Company, the insurer which preceded Royal Globe as insurer of claimant’s employer, Redfield Scope Company, was liable for payment of the benefit...
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In this workmen’s compensation case, employer, City of Aurora, seeks review of a final order of the Industrial Commission which reversed the hearing officer’s denial of the claim and granted death benefits to claimant, Peter B. Corr, Sr. We set aside the order of the commission. Debra S. Corr, claimant’s wife, was fatally injured in a compensable accident on June 27, 1981, while working for the Au...
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Halliburton Services, employer, and Highlands Insurance Company, insurer, seek review of a final order of the Industrial Commission finding that claimant, Robert Miller, suffered a compensable accident and awarding him permanent partial and temporary total disability benefits. Claimant seeks review of that portion of the order allowing the employer credit under 1971 Perm.Supp., C.R.S.1963, 81-12-...
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Defendant, Sidney Louis Stephens, appeals the judgments of conviction entered upon jury verdicts of first degree arson, second degree arson, and subsequent enhanced punishment under the habitual criminal statute. We affirm. I. Defendant first contends that documents received into evidence during the sentence enhancement portion of the trial were improperly admitted because they were not “duly...
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Randall Edward Rex, defendant, appeals his conviction of second degree kidnapping. We reverse. On September 19, 1977, defendant was charged with attempted murder in the second degree, second degree kidnapping, and sexual assault on a young girl in Loveland on September 6, 1977. The sexual assault charge was dismissed following a preliminary hearing. Defendant’s first trial ended in a mistrial i...
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Defendant, Ralph Canseco, appeals the trial court’s order of restitution, entered as a condition of probation following defendant’s guilty pleas to two misdemeanor counts. We reverse and remand for a further hearing on restitution. After a traffic accident, defendant was involved in a fight with four persons: Viola Bradeen, Rhonda Bradeen, Jeffrey Bra-deen, and Dean Woods. Defendant was originally...
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In this workmen’s compensation case, the claimant, Jake Gonzales, seeks review of an order of the Industrial Commission. A referee had entered an order in 1982 which it characterized as interlocutory in nature. The Industrial Commission held that an amendment to the Workmen’s Compensation Act effective in 1983 was to be applied retroactively. The effect of that amendment on the referee’s order wa...
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689 P.2d 679 (1984) Robert D. KEELING, Leroy Johnson, Alan C. Palmer, Carl Campbell, Mike Peterson, Robert Henry Strobl, Don L. McGuire, Dale Lee Dean, Michael Lloyd Page, Glenn R. Crespin, Ray Dwane Rowland, Fred R. Knowles, Wallace A. Irwin, Jr., Donald G. Malone, Wayne C. Smith, William J. Geary, Jr., Roscoe D. Booth, William A. Chamberlain, Individually, Plaintiffs-Appellees, v. The CITY OF G...
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In this workmen’s compensation case, claimant, Roger Jones, seeks review of the final order of the Industrial Commission denying him vocational rehabilitation benefits and awarding him a 20 percent scheduled disability of the leg at the knee. See § 8-51-104(l)(x), C.R.S. Adolph Coors Company (employer) seeks review of the Commission’s assessment of penalty against it for failure timely to admit...
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Plaintiff, Chaffin, Inc., obtained a prejudgment attachment pursuant to C.R.C.P. 102 following filing of its complaint alleging that Dennis Wallain had converted over $366,000 of Chaffin’s property. Approximately one year later, defendants Dennis and Karen Wallain filed a traverse, and after an extensive hearing, the trial court entered judgment dissolving the attach *686 ment. We ...
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The defendant, Bernadette Barela, was charged with manslaughter and felony child abuse, and her husband, Jesse Barela, was charged with felony child abuse following the death of their infant son, Adam. Following a joint jury trial, defendant was convicted of both charges and sentenced to concurrent four year terms of imprisonment. Defendant’s husband was convicted of felony child abuse. Defendant...
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Defendant, Lefty Romero, appeals his conviction by a jury for unlawful distribution, manufacturing, dispensing, sale, or possession of a controlled substance, in violation of § 18-18-105, C.R.S. (1983 Cum. Supp.). We affirm. On November 30, 1981, the principal of Trinidad High School discovered two students, Ross Martinez and Chris Gurule, smoking marijuana on school grounds. The police were co...
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689 P.2d 695 (1984) Margaret HILDEBRAND, Plaintiff-Appellee, v. Vern OLINGER and Sunny Dee Olinger, Defendants-Appellants. No. 82CA1174. Colorado Court of Appeals, Div. I. May 10, 1984. Rehearing Denied June 7, 1984. Certiorari Denied October 9, 1984. *696 Hellerstein, Hellerstein & Shore, P.C., Martin H. Shore, Lyle L. Boll, Denver, for plaintiff-appellee. Jerald G. Kriss, Littleton, for def...
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Arguing that remand instructions from our Supreme Court were not followed, petitioner, Guy Y. Legouffe (claimant), seeks review of the Industrial Commission’s refusal to reopen this workmen’s compensation proceeding. We set aside the order. The facts surrounding the claim for benefits here at issue are adequately set forth in our previous opinion, Legouffe v. Prestige Homes, Inc., 634 P.2d 1010 (C...
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689 P.2d 699 (1984) Don VICK, Trustee, Petitioner-Appellant, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF LARIMER, State of Colorado, Courtlyn Hotchkiss, Commissioner, James Lloyd, Commissioner, and Nona Thayer, Commissioner, The Larimer County Planning Commission, Paul Vanhorn, Jean Johnson, Ken Montgomery, Marian Maggi, Bob Streeter, Wes Wesfall, Shirley Ferrier, Jim Caufield, and Fran...
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Petitioner, Don Vick, as trustee for the owner of 73 acres of land located in an unincorporated portion of Larimer County, sought approval of a subdivision plat from the Board of County Commissioners. The Board refused to approve the plat, and Vick sought review in the district court pursuant to C.R.C.P. 106(a)(4). The court upheld the action of the Board. Vick appeals and we reverse. The land in ...
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Plaintiff, Western Paving Construction Co. (Western), appeals the district court’s dismissal of its action pertaining to the denial of its rezoning application by the defendant, Jefferson County Board of County Commissioners. We affirm. In 1972, Western acquired real property in an area in unincorporated Jefferson County commonly known as North Table Mountain. It was zoned Agriculture-2 (A...
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This matter came on for resolution of this court’s May 3, 1984, Order to Show Cause why the petition for review should not be dismissed as untimely filed. Upon consideration of petitioner’s response thereto, we now discharge that order. The Industrial Commission’s initial decision, reviewing the hearing officer’s order, was mailed on October 12, 1983. Although petitions for review of deputies’ or ...
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Plaintiff, George W. Hamel, III, appeals the trial court’s judgment denying him in-junctive relief, and finding in favor of defendant, White Wave, Inc., on its counterclaim for specific performance in which redemption of common stock pursuant to defendant’s Articles of Incorporation (Articles) was requested. We affirm. Originally, White Wave was a sole proprietorship. In May 1978, White Wave becam...
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Employer, Tri-State Commodities, Inc. (Tri-State), and insurer, Argonaut Midwest Insurance Company, seek review of a final order of the Industrial Commission awarding death benefits to the survivors of Frank R. Stewart, deceased. Petitioners contend that the Commission erred in its determination that decedent’s death arose out of and in the course of employment and that decedent’s stepchildren ...
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Claimant, Billy E. Masdin, seeks review of a final order of the Industrial Commission awarding him 25 percent permanent partial disability reduced by the amount of benefits to which he is entitled under an employer-funded disability retirement plan. Employer, Gardner-Denver-Cooper Industries, Inc., and insurer, CNA Insurance Companies, cross-petitioners, allege that the Commission erred in its ...
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The plaintiff, Frank Kreith, appeals the judgment dismissing his complaint praying for a declaratory judgment that he is a tenured faculty member at the University of Colorado and for issuance of an injunction requiring the University to restore him to a teaching position. Kreith argues, among other things, that the trial court erred in ruling that the power to accept his tendered offer of early ...
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In 1981, an Eagle County treasurer’s deed (the tax deed) was issued to defendant Conrad E. Shuberth (tax buyer) upon a tax sale conducted in December 1976 for unpaid taxes for the year 1975. The tax deed purported to convey the common area in the Timbergreen Townhouses subdivision. Claiming that this deed is invalid, plaintiffs, John and Nancy Jean Wittemyer (lot owners), brought this action agai...
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In this wrongful death and personal injury action, plaintiffs, Dan Baker and the fathers of Nicholas Rohleder, Bryon Smith, and Henry Rasmussen, deceased, appeal the trial court's directed verdict for defendant, Cyril M. Bratrsovsky, on the issue of negligent entrustment. We affirm. The facts are as follows. On or about August 8, 1980, defendant Bratrsovsky, a used car salesman in Fort Morgan, ...
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Plaintiffs, Andrew M. and Olivia M. Sanford, appeal the judgment of the trial court holding defendant Kobey Brothers Construction Corp. (Kobey Brothers) liable to plaintiffs in the amount of $8,905.59 and holding co-defendant Harris Kobey not jointly or severally liable. We affirm in part, reverse in part, and remand with directions. Kobey Brothers constructed a home for the plaintiffs in ...
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The major issue in this appeal is whether a trial court’s determination of paternity in a dissolution of marriage action is valid when, although requested to do so, it failed to follow any of the procedures outlined in the Uniform Parentage Act (U.P.A.), § 19-6-101, et seq., C.R.S. (1978 Repl.Yol. 8). We conclude that such a paternity order is void, and reverse. In her petition for dissolu...
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In this medical malpractice action, plaintiff, Dorothy J. Connelly, appeals from a judgment entered on a verdict for defendant, Allan B. Kortz, M.D. We affirm. Connelly alleged that the negligent diagnosis of her gastrointestinal disorder by Kortz led to her having to undergo unnecessary surgery. To establish the negligence of Kortz, a surgeon, Connelly offered Robert D. McCartney, M.D., a phys...
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Claiming that the trial court erred in determining there was no legal basis for its claims of tortious interference with contractual relations and prospective business advantage, plaintiff, Wasalco, Inc. (Wasal-co), appeals a summary judgment entered for defendants, El Paso County and its board of county commissioners (the county). We affirm. Woodmoor Development Fund (Wood-moor) had been ...
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Petitioner, Helen D. Knight, the widow of decedent William S. Knight, seeks review of the final order of the Industrial *734Commission dividing death benefits equally between her and the minor children of the decedent by a former wife. See § 8-50-101, C.R.S. (1983 Cum.Supp.). The widow argues that the minor children are not entitled to share in the weekly death benefits under § 8-50-104, C.R.S., b...
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Plaintiff, Lynelle Carlson, sued Paul Garrison, doing business as Garrison Auto Brokers, on the theory of deceit by nondisclosure relative to her purchase of a used automobile. The trial court ruled in favor of Carlson, awarded actual and consequential damages in her favor, and also awarded exemplary damages of $5,000. On appeal, Garrison asserts that the evidence fails to support the tria...
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689 P.2d 738 (1984) CORPORATION OF the PRESIDING BISHOP OF the CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS, a Utah corporation, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS OF JEFFERSON COUNTY, Leland D. Kinnie and Ralph L. Cotton, Defendants-Appellees. No. 83CA0057. Colorado Court of Appeals, Div. II. September 13, 1984. Jim T. Tice, Littleton, for plaintiff-appellant. *739 Patrick R. M...
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*372 OPINION OF THE COURT BY We are asked to review a decision and order of the Public Utilities .Commission allowing a rate increase for telephone and related services provided by the Hawaiian Telephone Company. The Company sought specific approval of revised intrastate rate schedules it claimed were projected to increase intrastate revenues by approximately $47,600,000 and “pro...
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OPINION OF THE COURT BY This is an appeal from a conviction of Theft in the First Degree under HRS § 708-831(l)(b). Appellant contends that she should have been charged with a violation of HRS § 383-141. Section 383-141 provides: Falsely obtaining benefits, etc. Whoever makes a false statement or representation knowing it to be false or knowingly fails *407to disclose a material fact, to obtain or...
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OPINION OF THE COURT BY On September 21, 1981, defendant Todd Avery Paaaina (Paaaina), was indicted for Promoting Prison Contraband in the First Degree, in violation of Hawaii Revised Statutes (HRS) § 710-1022(l)(b) (1976). After a jury trial, Paaaina was Found guilty as charged. Paaaina appeared before the trial judge for sentencing on January 19, 1984. Pursuant to HRS § 706-601 (1976), the tria...
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*414OPINION OF THE COURT BY This is an appeal taken from a grant of summary judgment by the lower court which declared sections 34 and 34A of Act 129, Session Laws of Hawaii 1982, unconstitutional, but upheld the constitutionality of section 35 of the Act. We reverse the decision because the enactment of sections 34 and 34A is a proper exercise of the legislature’s function to control matters of s...
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689 P.2d 767 (1984) 107 Idaho 351 STATE of Idaho, Plaintiff-Appellant, v. Michael Robert JOBLIN, and Kenneth Andrew Joblin, Defendants-Respondents. No. 14818. Supreme Court of Idaho. October 17, 1984. Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Boise, for plaintiff-appellant. *768 Klaus Wiebe, Boise, for defendants-respondents. BISTLINE, Justice. On August 9, 1979, Christopher Goff was stab...
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concurring. I concur in the result in this case. However, I cannot in good conscience approve the rationale of the majority opinion, for I believe it will bring confusion to the *75law of this state. This case raises a legal issue as to the duty owed by a landowner to a social guest who has the legal status of a licensee. I would hold that, as to invitees and licensees, this court should abolish t...
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The opinion of the court was delivered by This case is before the court on a Petition for Review of the decision of the Court of Appeals found at 9 Kan. App. 2d 353, 678 P.2d 181 (1984). Clayton Logan (defendant-appellant) appealed the denial of his motion for disqualification of the trial judge due to bias. The basis of his motion for a new trial was two-fold: (1) that defendant’s original attorn...
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This is an action by Michael J. Stevens, a prospective purchaser of certain real estate, against Forest Tennant, a real estate broker, and Jayhawk Realty Co., Inc., seeking damages occasioned by the property not having been sold to him. The action is predicated upon theories of fraud and breach of a fiduciary duty. At trial the jury found for plaintiff on both theories of liability and awarded ...
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236 Kan. 97 (1984) 689 P.2d 787 VERNON O. WALLIS, KIRBY VACUUM CLEANER CO., DODGE CITY, KANSAS, Appellee, v. SECRETARY OF KANSAS DEPARTMENT OF HUMAN RESOURCES, STATE OF KANSAS, Appellant. No. 55,788 Supreme Court of Kansas. Opinion filed October 26, 1984. H. Dean Cotton, of Topeka, argued the cause and was on the brief for appellant. Eldon L. Ford, of Cosgrove, Webb & Oman, of Topeka, argued ...
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The opinion of the court was delivered by This is a consolidated action to recover damages for wrongful deaths and personal injuries arising out of an automobile collision which occurred on the Kansas Turnpike on November 5, 1978, in Leavenworth County. The factual circumstances surrounding the accident were essentially undisputed and involved a high-speed, head-on collision between a 197...
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The opinion of the court was delivered by This is a direct appeal in a criminal action from a conviction of murder in the first degree (K.S.A. 21-3401). The defendant, Lila J. Baker, was tried and convicted of the murder of her uncle, Milford Fall. The circumstances leading up the homicide were not greatly in dispute. The State’s evidence showed that the defendant was at the home of her uncle a...
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The opinion of the court was delivered by This is an appeal by plaintiffs, in two comparative negligence actions, from orders of the trial court granting directed verdicts in favor of the defendant, Board of County *139 Commissioners of Franklin County, Kansas (Franklin County), and that portion of the jury’s verdict which contributed 10% of the fault for the vehicle collision to the plaintif...
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The opinion of the court was delivered by This is an appeal by Bennie Murdock from his conviction of first degree felony murder, K.S.A. 21-3401, aggravated burglary, K.S.A. 21-3716, and rape, K.S.A. 21-3502, by jury trial in Sedgwick District Court. He contends that the trial court erred in refusing to strike the testimony of the State’s fingerprint expert, Detective Vickie Abele, in excl...
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The opinion of the court was delivered by The State appeals from the dismissal of the information against Patrick T. McQuillen for its failure to bring the defendant to trial within 180 days. K.S.A. 22-3402. The informa*162tion charged McQuillen with rape (K.S.A. 21-3502) and aggravated sodomy (K.S.A. 21-3506). The defendant was charged with rape and aggravated sodomy in a complaint filed November...
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The opinion of the court was delivered by The plaintiffs in two Sedgwick County cases, consolidated for appeal, attempted to sue their employers’ workers’ compensation insurers for tortious behavior in termi *191 nating the injured workers’ benefits without just cause. Hormann is here on interlocutory appeal following the district court judge’s denial of insurers’ ...
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The opinion of the court was delivered by This is an action brought by the sellers against the buyer to recover damages for breach of an oral contract for the sale and purchase of 285 steers. The plaintiffs are J. Martin Quaney and his sons, William E. Quaney, and James Daniel Quaney, farmers and cattlemen residing in Osage County. The defendant, Lowell Tobyne, is a farmer-rancher and feed lot ...
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The opinion of the court was delivered by This is an appeal by the defendant railroad, Burlington Northern Railroad Company, from a judgment for $434,000 entered against it in favor of the plaintiff, Sylvester Gaulden. The plaintiff, a former employee of the railroad, brought this action to recover damages for personal injuries under the provisions of the Federal Employers’ Liability Act, 45 U.S.C...
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236 Kan. 218 (1984) 689 P.2d 855 MICHAEL J. ROE, Appellee, v. LAURA DIEFENDORF, Appellant. No. 56,352 Supreme Court of Kansas. Opinion filed October 26, 1984. John F. Stites, of Stites, Hill & Wilson, of Manhattan, argued the cause and was on the brief for the appellant. Jeffrey Ray Elder, of Myers & Pottroff, of Manhattan, argued the cause and Robert L. Pottroff, of the same firm, was wi...
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The opinion of the court was delivered by The defendants seek to have a restraining order, temporary injunction, and resulting injunction declared unconstitutional. On May 23, 1980, Don McKinney, Marilyn Taylor, and Steve *225 Stocker went to the offices of U.S.D. No. 503 (District) to file a grievance which they presented to the secretary, Kathy Hard-man. Present in the...
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236 Kan. 237 (1984) 689 P.2d 871 CECIL C. BOX, Claimant-Appellee, v. CESSNA AIRCRAFT COMPANY, Defendant-Appellant, and THE HARTFORD ACCIDENT & INDEMNITY COMPANY, Defendant-Appellant, and WORKERS COMPENSATION FUND, Defendant-Appellee. No. 56,391 Supreme Court of Kansas. Opinion filed October 26, 1984. Randall E. Fisher, of McDonald, Tinker, Skaer, Quinn & Herrington, of Wichita, argued the...
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The opinion of the court was delivered by Following pleas of nolo contendere, defendant Taber D. Adkins was found guilty of aggravated kidnapping (K.S.A. 21-3421); aggravated sodomy (K.S.A. 21-3506); and attempted first-degree murder (K.S.A. 21-3401, 21-3301). The crimes occurred on May 31, 1983, in Junction City. The victim was a six-year-old girl. In his direct appeal, defendant contends: (1)...
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The opinion of the court was delivered by This is an appeal by the State of Kansas in a criminal prosecution from an order of the district court dismissing two counts of a four-count indictment. This case was before the Supreme Court once before on a State’s appeal but was dismissed because this court lacked jurisdiction under K.S.A. 22-3602(b). The facts of the case, as set forth in State v. ...
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The opinion of the court was delivered by This is an appeal by the State on a question reserved pursuant to the provisions of K.S.A. 22-3602(b)(3). The question arises from a ruling of the trial court suppressing evidence of blood alcohol test results. The ruling appealed from was made on the morning of the trial after the defendant filed a motion for an order in limine to exclude the test re...
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*297 The opinion of . the court was delivered by This is a direct appeal in a criminal action from jury convictions of rape (K.S.A. 1983 Supp. 21-3502) and aggravated sodomy (K.S.A. 1983 Supp. 21-3506). Many of the facts are undisputed and essentially are as follows: The victim, whom we will call Mrs. T, was separated from her husband and lived with her two and one-half year old son in Leaven...
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This is an original action filed before the Board for Discipline of Attorneys by Arno Windscheffel, disciplinary administrator, against Barbara Vache, an attorney admitted to practice law in the State of Kansas. The respondent was charged with neglecting a legal matter entrusted to her by a client. Respondent was retained by Lewis A. Warren, Sr. to seek judicial review of an administrative deci...
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This is a disciplinary action filed before the Board for Discipline of Attorneys by Arno Windscheffel, disciplinary administrator, against Kevin J. Sullivan, an attorney admitted to practice law in the State of Kansas. The formal complaint filed by the disciplinary administrator charged that the respondent, as conservator of the estate of Maltbie Wood, converted funds of his ward to his own person...
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This is an appeal from an order denying attorney fees claimed to have been earned under K.S.A. 40-3113a(e) by recovering personal injury protection (PIP) benefits for plaintiff s insurer. The trial court’s order was based on a finding that the “recovery” for which attorney fees was sought did not represent PIP benefits but instead constituted advance payment of damages under K.S.A. 40-275. Alth...
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This is an appeal from a judgment in a declaratory judgment action holding that a “transfer of title” of mortgaged real estate had occurred, thus triggering the acceleration clause of a promissory note held by the plaintiff, Century Savings Association of Kansas (Century). The parties stipulated to the facts. Highly summarized, in 1976 Century’s predecessor, Kansas Savings & Loan Association, loan...
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William Carey appeals from an order denying his post-trial motion to reduce child support payments. In April, 1982, Regina Carey petitioned for divorce from William Carey. At the time of the divorce, two of the parties’ four children were minors. In the decree filed August 3, 1982, defendant was ordered to pay $340.00 per month as “family support and alimony.” A year later William Carey moved to r...
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delivered the Opinion of the Court. Wayne Leslie Koepplin appeals the judgment of the Jefferson County District Court finding him guilty of mitigated deliberate homicide. The appellant Koepplin raises the issue of whether the District Court erred in denying his motion to withdraw his plea of guilty. We find no error and affirm. *58 At the time of the homicide, Koepplin and the victim, Jacki...
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*530 OPINION This is an appeal from a judgment granting specific performance of a land sales contract with an accompanying equitable accounting. The central issue in this appeal is the propriety of the trial court’s order granting specific performance of Stoltz’s agreement to sell a certain five-acre parcel of land known as the Covered Wagon Mobile Home Park to the respondents, Grimm and Tayl...
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OPINION This is an appeal' from a declaratory judgment involving a restrictive covenant which appellees (Lockwood, Abrams, and Brown) alleged prohibited appellants (Steiner) from splitting their lot into two parcels and from selling one of the parcels to appellants (Barker). After a hearing, the trial court rendered judgment for appellees. We affirm. Appellants raise two issues on appeal: (1) That...
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OPINION Richard Garcia was coach and manager of a softball team. 1 On Sunday, April 4, 1982, Richard left home about 12:30 p.m. and returned about 5:30 p.m. During this period he was driven to a practice field; the team practiced about two hours; after practice new uniforms were distributed and some of the team members went to a Pizza Hut; and Richard was returned to his home. ...
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OPINION Defendants 1 sold scrap metal, motors, small tools and implements, three vehicles and other items accumulated at defendants’ welding shop (referred to hereinafter as scrap metal) for $6,000. The sales price was paid. This lawsuit resulted from a dispute over who was entitled to take possession of the scrap metal that was sold. Plaintiff sued defendants for fraud, constr...
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Decedent entered into a loan transaction with American Federal Savings and Loan Association to obtain funds to pay off an interim real estate financing note and mortgage held by another lending institution. At closing appropriate documents were presented to Decedent. All documents were signed by both parties, with the exception of an optional credit life insurance application of First Pyramid Life...
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This action was instituted in the District Court of Oklahoma County to recover damages sustained as a result of exposure to toxic pesticides manufactured and sold by Stauffer Chemical Company and purchased by plaintiff Byron A. Daugherty from Farmers Cooperative Association. The pesticide was known as Cythion E-5 and it appears from the record plaintiff applied the substance between July 22 and...
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In September 1980 Jimmy Stover obtained a divorce from his wife, Lahoma, the mother of the couple’s 9 and 5-year-old girls, but his request for custody was rejected. On January 6, 1982, the father again asked the court to grant him custody of his daughters. January 28, 1982, the decree was modified and split custody was ordered, granting the father custody dur*953ing the school session and the mot...
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This case is back before us on defendant Gulf Insurance Company’s petition for rehearing. The petition requests that we withdraw that portion of our opinion in Kentner v. Gulf Ins. Co., 297 Or 470, 686 P2d 339 (1984), which holds that under ORS 743.045(1) it was prejudicial error to permit the plaintiffs application for the insurance policy to be received in evidence. Among the ...
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689 P.2d 958 (1984) 298 Or. 146 EAST COUNTY BARGAINING COUNCIL, Petitioner On Review, v. CENTENNIAL SCHOOL DISTRICT NO. 28JT, Respondent On Review. ERB C-185; CA A27416; SC S31037. Supreme Court of Oregon, In Banc. October 30, 1984. Henry H. Drummonds and Kulongoski, Heid, Durham & Drummonds, Eugene, for petitioner on review. MEMORANDUM OPINION. Petitioner seeks review of a decision of the Co...
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*148MEMORANDUM OPINION Petitioner seeks review of a decision of the Court of Appeals affirming an order of the Employment Relations Board. ERB ruled that respondent school district did not commit an unfair labor practice in refusing to bargain about petitioner’s proposal to include in the parties’ contract a provision for teacher evaluation procedures identical to evaluation procedures required by...
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Plaintiff State Farm Mutual Automobile Insurance Company (State Farm) brought this proceeding for a declaratory judgment, seeking a declaration that the personal injury protection (PIP) coverage of its policy issued to defendant Miller does not afford benefits to defendant Berg or, if Berg is entitled to such benefits, plaintiffs obligation should be up to the limits of that coverage for only o...
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Plaintiffs, purchasers under a land sale contract, appeal a decree dismissing their claims for rescission of that contract and granting defendants’ counterclaim for strict foreclosure. We affirm. Given our view of the case, a detailed statement of the evidence is unnecessary; we state only the material facts. The subject of the contract is a 16,000-acre ranch (the Green Valley Ranch), located 27 m...
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Plaintiff, a secured creditor, sued defendant Self Loader Service, Inc. (Self Loader), its debtor, and defendants Wagnon, as guarantors of the debt, for a deficiency under an installment sale contract and security agreement. Defendants’ amended answer alleged, by an affirmative defense and a counterclaim for damages, that plaintiffs sale of the collateral after repossession was commercially unr...
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In these twenty consolidated cases, plaintiff sought to foreclose certain real estate mortgages. The mortgagors were originally named as parties. They defaulted and are not parties to this appeal. Defendants Choy and Wong entered into contracts to purchase the real estate from the mortgagors.1 They appeal from a judgment that specifically enforced a settlement agreement entered into by the parties...
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689 P.2d 985 (1984) 70 Or.App. 333 STATE of Oregon, Respondent, v. Jerry L. PETERSON, Appellant. C82-11-38132; CA A27882. Court of Appeals of Oregon, In Banc. Argued and Submitted October 21, 1983. Resubmitted October 3, 1984. Decided October 10, 1984. Paul S. Petterson, Portland, argued the cause and filed the brief for appellant. Richard D. Wasserman, Asst. Atty. Gen., Salem, argued the cause f...
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This is a securities case in which plaintiffs alleged that defendant Hills and others violated state and federal securities laws. They sought $569,000 in damages plus more than $200,000 in attorney fees, expenses and costs. Defendant Hills appeals from a judgment for plaintiffs. The dispositive issue is whether the trial court abused its discretion in striking defendant’s appearance, in declari...
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This is a garnishment proceeding. Plaintiffs seek to garnish the professional liability insurance of defendant attorney John Hills provided by the Oregon State Bar Professional Liability Fund (Fund). The writ of garnishment was issued after plaintiffs obtained a default judgment against Hills for alleged security law violations. The circuit court dismissed plaintiffs’ garnishment. We affirm, but f...
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Petitioners appeal from a Land Conservation and Development Commission (LCDC) order acknowledging that the Douglas County Comprehensive Plan and land use regulations are in compliance with the statewide land use planning goals. ORS 197.251. We reverse and remand. Petitioners assign five errors, three of which relate to LCDC’s approval of the county’s exception of two areas, the Briggs and ...
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689 P.2d 1004 (1984) 70 Or.App. 425 Will Charles WILLBANKS, Respondent, v. James O. GOODWIN, Personal Representative of the Estate of Lillian C. Willbanks, Lavonne Mars, Ember Mars, Amber Mars and Angel Mars, Appellants. 82-9-385; CA A29651. Court of Appeals of Oregon. Argued and Submitted June 11, 1984. Decided October 24, 1984. Reconsideration Denied December 7, 1984. *1005 Ferris F. Boothe, Po...
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Plaintiffs appeal a summary judgment for defendant. The court held that the two-year statute of limitations had run. See ORS 12.110(1); ORS 12.020(2). We reverse. Plaintiffs suffered personal injuries and damage to their vehicle in an accident with defendant’s vehicle on April 12,1980. They filed this action for personal injuries on April 9, 1982. Defendant was served in Washington in August 1982,...
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Petitioner seeks review of an order of the Land Usé Board of Appeals (LUBA) which dismissed its petition for review of a land use decision made by the Multnomah County Board of Commissioners (Board). LUBA decided that petitioner’s notice of intent to appeal was not timely filed. We affirm that decision. Respondent Greater Portland Broadcasting Corp. applied to the Multnomah County Planning Commiss...
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Claimant petitions for review of an order of the Workers’ Compensation Board that reversed the order of the referee and denied his occupational disease claim for degenerative arthritis in both knees. The issue here is compensability. We reverse. Claimant, age 43, worked for Northwest Natural Gas Company as a serviceman for 18 years. He had to kneel or squat on almost all of his service calls. He m...
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689 P.2d 1021 (1984) 70 Or.App. 460 RONALD A. AND CAROLINE OLSON, Inc., an Oregon Corporation, Appellant, v. UNITED STATES NATIONAL BANK OF OREGON, a Banking Association, Respondent. UNITED STATES NATIONAL BANK OF OREGON, a National Banking Association, Third-Party Plaintiff, v. M[2]S[2], Inc., an Oregon Corporation, Third-Party Defendant. A8304-02151; CA A30159. Court of Appeals of Oregon. Argue...
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Defendant seeks reversal of his conviction for failure to appear in the first degree, ORS 162.205, contending that the charging statute is unconstitutionally vague.1 Because his behavior was unquestionably within the prohibited conduct of the statute, we hold that defendant is precluded from challenging the constitutionality of the statute, as applied to him, on vagueness grounds. Accordingly, we ...
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In this dissolution proceeding, wife obtained a writ of garnishment on husband’s bank account to execute on a judgment for accrued child support payments. Husband objected to the garnishment, claiming that he withheld the child support payments to offset a sum of his money which wife illegally converted to her use. The trial court granted husband credit on the child support judgment for the sum th...
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Petitioners appealed to the Land Use Board of Appeals (LUBA) from the City of Portland’s allowance of front and side setback variances that the applicants had sought to enable them to construct an addition to their residence. LUBA remanded to the city for “explanatory findings” about the meaning and application of its variance ordinance. The city did not permit petitioners and their attorney to of...
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Plaintiff appeals from the trial court’s orders allowing defendant’s motions to dismiss his third and fourth amended complaints and denying him the right to plead further and from the entry of judgment in favor of defendant. We reverse and remand. Plaintiff brought this action for damages for an alleged breach of an exclusive truck brokerage contract. 1 The trial court dismissed his third and...
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This is a state’s appeal from the dismissal of a charge of driving while under the influence of intoxicants (DUII). We affirm. Defendant was charged by a single indictment with the crimes of driving while suspended or revoked (DWS), ORS 487.560, and driving while under the influence of intoxicants, ORS 487.540. The two crimes were alleged to have occurred during the same act or transaction. The st...
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The state appeals from the trial court order sustaining defendant’s demurrer to count III of a three-count indictment. Count I charged defendant with criminal mischief in the first degree. ORS 164.365. Count II charged menacing. ORS 163.190. Count III charged failure to perform the duties of a driver involved in an accident. ORS 483.602. All the charges were alleged to be part of the same act a...
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Claimant has petitioned for reconsideration and review of our affirmance without opinion of the Workers’ Compensation Board’s decision denying compensation for his psychiatric treatment. Faught v. SAIF, 68 Or App 924, 683 P2d 171 (1984). We grant the petition for the purpose of determining whether the Supreme Court’s decision in Bauman v. SAIF, 295 Or 788, 670 P2d 1027 (1983), requires a different...
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This action is one for an accounting and for dissolution of a partnership between brothers, Derril Simpson and Kerney Simpson.1 The partnership property consisted primarily, but not exclusively, of real property. After stipulating to the valuation of the properties and of their respective interests in each property, the parties submitted to the court the issue of how the properties should be alloc...
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Claimant appeals from an order of the Workers’ Compensation Board affirming the referee’s order upholding the insurers’ (Adminco and SAIF) denials for claimant’s hearing loss. We hold that claimant has established by a preponderance of the evidence that SAIF is responsible for his hearing loss and reverse. Claimant is a 48-year-old man who has been employed by the Eugene Police Department since Ma...
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FMC Corporation (FMC) appeals a decision of the Workers’ Compensation Board, which held that FMC, in its self-insured capacity, and not its former carrier, Liberty Mutual Insurance Company, was responsible for claimant’s asbestos-related cancer condition. We affirm. Claimant was employed by FMC and by its predecessor, Gunderson Brothers, from 1957 until his retirement in 1978. From 1967 to Octo...
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The sole issue presented is whether respondent (Lamb) has standing to maintain an appeal to the Lane County Board of Commissioners (Board) from a quasi-judicial land use decision made by a county hearings officer. The Board, relying on Lane County ordinances, concluded that Lamb did not have standing. LUBA concluded that the Board applied the wrong test to determine standing and reversed. We affir...
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This case is before us for the third time. In B & D Investment v. Petticord, 48 Or App 345, 617 P2d 276, rev den 290 Or 302 (1980), and B & D Investment Corp. v. Petticord, 61 Or App 585, 659 P2d 400, rev den 294 Or 792 (1983),1 we reversed and remanded, inter alia, for the trial court to award plaintiff appropriate quantum meruit damages, if any. Defendants Petticord appeal from the trial court’s...
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In this dissolution proceeding, the court held a preliminary hearing on January 14,1983, to determine temporary custody of the couple’s children. At the trial in July, 1983, the court ruled that evidence concerning facts and events occurring before January 14, 1983, would not be admitted, even though such evidence was not presented at the preliminary hearing.1 The issues in a hearing to determine ...
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689 P.2d 1056 (1984) 70 Or.App. 486 Roger A. NELSON, Donald R. Dwyer and Roderick O'Hearn, Appellants, v. Benjamin BROSTOFF, Respondent. A8209-05728; CA A26783. Court of Appeals of Oregon. Argued and Submitted February 15, 1984. Decided October 31, 1984. Reconsideration Denied December 21, 1984. *1057 John S. Folawn, Portland, argued the cause for appellants. With him on the briefs were Lee S. Ar...
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(dissenting) — The lesson the majority teaches today is that detaining a burglar leaving the scene *744of the burglary in progress is unconstitutional. And even as it prohibits the police action taken to investigate this burglary, the majority says little to indicate exactly what it finds offensive to the Fourth Amendment or to our state constitution in this case. As a result, those who have the d...
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We hold the rule in State v. Tongate retroactive in personal restraint petitions, and grant the relief requested. In State v. Tongate, 93 Wn.2d 751, 613 P.2d 121 (1980), we held that enhanced punishment under RCW 9.95.040 requires proof beyond a reasonable doubt that the defendant was armed with an actual deadly weapon when he committed the crime. State v. Pam, ...
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102 Wash. 2d 844 (1984) 689 P.2d 1078 In the Matter of DENNIS BELSHER. No. B.A. 1. The Supreme Court of Washington, En Banc. November 1, 1984. DORE, J. Petitioner, Dennis Belsher, seeks admission to the bar association of the state of Washington. His application comes before this court for a determination of his moral fitness to practice law. We deny his application. I On March 12, 1973, in Boul...
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Francis L. Chaussee appeals the judgment of the Superior Court for Snohomish County, affirming the administrative decisions of the hearing examiner and County Council of Snohomish County which held that Snohomish County Code, Title 20A (SCC 20A) and the minimum road standards incorporated therein were applicable to a parcel of Chaussee's real property. The issues presented are: 1. Whe...
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Dennis Brittain appeals his conviction of second degree burglary in a jury trial at which he represented himself. The primary issue concerns whether the Superior Court should have appointed new counsel for Mr. Brittain based on his claim the public defender disclosed police reports to Mr. Brittain's mother, contrary to his specific request. The determination of whether or not the dissatisfactio...
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Harte Valentino Ellazar (Val) Barber appeals his conviction for murder in the first degree after a jury trial, alleging the trial court violated his right of confrontation by admitting the out-of-court declarations of an unavailable codefendant and also erred by admitting impeachment testimony. We affirm. Teodorico Dominguez (Boy Pilay) was shot and killed sometime between 7:30 p.m. on Saturday...
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On the State's motion this court granted discretionary review of a Cowlitz County Superior Court order dismissing on double jeopardy grounds a DWI charge against defendant Benjamin J. Browning. RAP 2.2(c), 2.3(d). We affirm. The facts all appear in the sparse record of the trial which took place June 16, 1982 before the Cowlitz County District Court and are as follows: Mr. Corigliano: Ladies ...
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Defendants, Fred and Hattie Voss, owners of the servient estate, appeal from a judgment that denied their counterclaim for an injunction against Will and Jean Brown, plaintiffs, owners of the dominant estate. Defendants requested the injunction to prevent plaintiffs from using an easement appurtenant to gain access to a non-dominant estate adjacent to the dominant estate. We reverse and remand fo...
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Nature of the Action Plaintiffs-appellees — the elder Pete Za-netti, his second wife, Donna, and Peter A. Zanetti, Jr., together with James F. Zelen-ka and Edwin Magagna — sued Pete Senior’s sons, Terry and William Zanetti, for alleged breach of an oral agreement to sell their interests in a joint venture, in which action they sought specific performance, damages and partitioning of ce...
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Opinion Is the Workers’ Compensation Appeals Board precluded by Labor Code section 5811 from awarding printing costs incurred by an em *237 ployee in answering a petition for writ of review summarily denied by an appellate court? I. Petitioner, Arthur E. Johnson, sustained work-related back injuries in 1972 and 1977 while employed as a ramp serviceman for respondent...
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OPINION Floyd Wortham was convicted, in a jury trial, of kidnapping Yanee Coleman, shooting him in the abdomen, and robbing him. Wortham was also convicted of being a felon in possession of a firearm. Judge Ralph Moody sentenced Wortham to sentences totalling fifty-three years. Wort-ham appeals his conviction and sentence to this court. FACTUAL BACKGROUND At Wortham’s trial Coleman testifie...
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In August 1981, Patricia Dean (claimant) was seriously injured when she fell from the roof of a building owned by Marion St. Group. She was an employee of Dill & Dill, P.C. (the law firm), and Marion St. Group was a client. The law firm had directed that she help the contractor in completing repair and renovation work on the building, and she was performing that function when the accident occurred...
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Defendant, Stephen D. Hamer, seeks reversal of a judgment of conviction for criminal extortion entered upon jury verdict. We affirm. The conviction arose out of a series of events which began while defendant and the victim were engaged to be married. During their courtship, defendant asked the victim to pose with him for sexually explicit photographs. The victim reluctantly agreed, believing th...
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Rol and Nancy Wellman brought this action in the trial court attacking the validity of certain public sales conducted in connection with the foreclosure of a deed of trust. The trial court granted summary judgment in favor of The Travelers Insurance Company, the beneficiary of the deed of trust. The Wellmans appeal, and we affirm in part and reverse in part. In November 1980, the Wellmans execu...
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Both the husband and wife appeal from permanent orders entered in a dissolution of marriage proceeding. The permanent orders were entered after the trial court had granted the wife’s C.R.C.P. 60(b) motion to set aside the property division provisions of a separation agreement that had previously been incorporated into the dissolution of marriage decree. We affirm the orders of the trial court. ...
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Petitioner, Ann Agnello, seeks review of a Civil Rights Commission (Commission) ruling adopting and approving a settlement agreement between the Civil Rights Division (Division) and the Adolph Coors Company (Coors) which resolved her complaint against Coors in which she alleged she was a victim of discrimination against the handicapped. We affirm. In April 1981, petitioner applied for a jump sh...
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Defendant, F.D. Wilkins, appeals the judgment of the trial court finding him liable to plaintiff, Bakehouse and Associates, Inc. (Bakehouse), for a real estate sales commission. Bakehouse cross-appeals the trial court’s denial of its motion for attorney fees. We affirm the judgment as to the liability of Wilkins and reverse and remand for further proceedings on the issue of attorney fees. Wilki...
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Plaintiff appeals a summary judgment granted in favor of defendants. We affirm. Plaintiff is a professional rodeo champion cowboy and a member of the defendant association. The Professional Rodeo Cowboys Association (PRCA) is a promotional organization which, among other activities, sanctions rodeo events. James Allen is a member of the Board of Directors of PRCA. This action involves...
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Defendant, Dan Jordan, appeals a trial court order holding him in contempt for his refusal to testify despite its grant of immunity pursuant to § 6-1-111(1), C.R.S. (1983 Cum.Supp.). We affirm. On June 5, 1981, under authority of the Colorado Consumer Protection Act, § 6-1-101, et seq., C.R.S., the People ex rel. Paul Q. Beacom as district attorney brought suit against various named defend...
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Defendants, Frank and Carolyn Black, appeal from a judgment for a permanent injunction prohibiting them from keeping goats on their residential property in the Conestoga Pines South Subdivision. We affirm. Plaintiff, Conestoga Pines Homeowner’s Association, Inc., is a non-profit corporation whose voluntary members are homeowners in two adjacent subdivisions. The Association brought suit against...
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Defendant, The First National Bank of Denver (the Bank), appeals the trial court’s denial of its motion to set aside a default judgment entered against it and in favor of plaintiff Rudy Sisneros, on April 29, 1981. (Action No. 3) We affirm. In February 1981, the Bank obtained a default judgment in an action against Sisneros on a promissory note in the Denver District Court. (Action No. 1) ...
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The opinion of the court was delivered by Edna Alice Ward (formerly Dallas) appeals from a judgment determining that her former husband, Earl Clay Dallas, has paid all past due child support. The Court of Appeals affirmed the ruling of the trial court in an unpublished opinion filed February 23, 1984, and we accepted review. The parties were divorced on June 22,1967. The court ordered the app...
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236 Kan. 120 (1984) 689 P.2d 1187 STATE FARM FIRE and CASUALTY COMPANY, Appellant/Cross Appellee, v. BYRON T. LIGGETT and LORRIETA A. LIGGETT, Appellees/Cross-Appellants, and SECURITY STATE BANK OF GREAT BEND, KANSAS, Appellees. No. 55,905 Supreme Court of Kansas. Opinion filed October 26, 1984. Lee Turner, of Turner and Boisseau, Chartered, of Great Bend, argued the cause, and Casey R. Law, of t...
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The opinion of the court was delivered by This is an interlocutory appeal, pursuant to K.S.A. *249 22-3603, by the State of Kansas from an order of the district court suppressing certain physical evidence in a criminal prosecution. The evidence suppressed was recovered by police officers from the locked trunk of defendant’s automobile during an inventory search of the vehicle as a part of the...
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This appeal is by the natural mother of a minor child from an order of the district court severing her parental rights. She raises six issues. The issue of most concern is what constitutes service of process on and notice to an incapacitated parent in a proceeding seeking severance of parental rights. Although not an issue here, it is reflected in the record before us that the State allege...
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delivered the Opinion of the Court. *444Appellant brings this appeal from a jury verdict in the Thirteenth Judicial District, Yellowstone County, for the defendants. The jury found the respondents not liable for the injuries appellant sustained in an automobile accident between a sheriffs deputy’s vehicle and a vehicle in which appellant rode as a passenger. We affirm. On March, 15, 1977, appellan...
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delivered the Opinion of the Court. Kenneth E. Funk and Alice M. Funk brought a quiet title action against Randolph K. Robbin in the District Court of Flathead County, asking to quiet title according to a Certificate of Survey. Defendant Robbin counterclaimed. Kenneth Funk died during the pendency of the action and Alice Funk died following the trial of the case to a 6-person jury. Bruce F...
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delivered the Opinion of the Court. Robert Hickey, appeals from an order of the District Court of the Eleventh Judicial District, Flathead County, in favor of his former wife, Sharon A. Hickey, granting custody of the minor children to respondent with reasonable rights of visitation remaining with the appellant, under the supervision of the Director of Family Court Services. The parties were ...
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delivered the Opinion of the Court. First National Bank of Libby (Bank) initiated an action in the Nineteenth Judicial District to recover on a delinquent promissory note executed by the Twomblys. Twomblys counterclaimed for breach of duty of good faith. The jury verdict awarded Twomblys compensatory damages of $4,000. The trial court’s judgment offset the balance due on the note, the interest ...
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delivered the Opinion of the Court. The Department of Labor and Industry, State of Montana, appeals the judgment of the Cascade County District Court finding the Department must grant the petitioner a veteran’s employment preference and appoint him to a manager’s job. The petitioner, Clare Jensen, was hired by the Job Service Division of the Department of Labor and Industry in 1961. When hired, Je...
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concurring and dissenting: I concur and dissent as follows. I concur with the resolution of issue one. I dissent from the resolution of issue two. The owner’s policy is primary. *111Mountain States Casualty Co. v. American Casualty Co. (1959), 135 Mont. 475, 342 P.2d 748. Section 61-6-301(1), MCA, places the primary responsibility for insurance upon the owner. The majority seeks to avoid relevant ...
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delivered the Opinion of the Court. The plaintiff, Northwestern Union Trust Co., acting as personal representative of the estate of Christ Worm, Sr., deceased, appeals from a judgment entered in favor of Ben Worm and Dorit Worm, respectively, the son and the former daughter-in-law of Christ and Helen Worm. The trust company sued Ben and Dorit Worm, contending that the warranty deed in their nam...
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689 P.2d 1246 (1984) In the Matter of B.L.O., Youth in Need of Care. No. 84-66. Supreme Court of Montana. Submitted on Briefs June 28, 1984. Decided October 31, 1984. *1247 Donald J. Louden, Terry Wallace, Missoula, for appellant. Mike Greely, Atty. Gen., Robert F.W. Smith, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, County Atty., John Riddiough, Missoula, for respondent. SHEA, Justice. T...
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delivered the Opinion of the Court. The mother of B.L.O. appeals an order of the Fergus County District Court declaring B.L.O. to be a youth in need of care. She also appeals an order of the Missoula County District Court granting temporary legal custody of the child to the Department of Social and Rehabilitation Services (SRS). Both orders are affirmed. The mother raises three procedural issues a...
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delivered the Opinion of the Court. This is an appeal from a judgment of the District Court of the Eighth Judicial District, in and for the County of Cascade. Respondent, Ardis, brought an action in dissolution of the parties’ marriage, and asked for custody of the parties’ minor child, asked for child support, set forth a visitation schedule, asked for an equitable division of the marital...
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delivered the Opinion of the Court. Defendant Bill E. Britton appeals a conviction by jury trial in the Lake County District Court, for felony theft. The sole issue is whether the trial court erred in denying Britton’s motion to dismiss for lack of a speedy trial. Defendant was charged on July 1, 1982, and was tried on August 1, 1983, 396 days after the complaint was filed and the arrest warran...
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delivered the Opinion of the Court. Defendant Matthew Hernandez appeals his conviction for felony theft (receiving stolen property) following a jury trial in Cascade County District Court. He. also appeals the order compelling restitution for charges that had been dismissed. We reverse the conviction and the charges are dismissed. Defendant pleaded guilty to burglary and theft of coins from a...
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delivered the Opinion of the Court. This is an appeal by the mother of a seven-year-old boy from an order modifying a joint custody decree. We reverse and reinstate the original order. Deanne and John Paradis were married in 1973. Their only child, Matthew, was born in 1977. They divorced in 1980. The couple’s settlement agreement and the District Court’s decree provided for joint legal and p...
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689 P.2d 1266 (1984) 101 N.M. 795 Jose E. JIMENEZ, Petitioner-Appellee, v. DEPARTMENT OF CORRECTIONS, et al., Respondents-Appellants. No. 14844. Supreme Court of New Mexico. September 18, 1984. Rehearing Denied October 25, 1984. Paul Bardacke, Atty. Gen., Deborah A. Moll, Asst. Atty. Gen., Santa Fe, for respondents-appellants. Frank Dickson, Jr., Albuquerque, for petitioner-appellee. OPINION STO...
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689 P.2d 1269 (1984) 101 N.M. 798 RIO GRANDE JEWELERS SUPPLY, INC., a New Mexico corporation, Plaintiff-Appellee, v. DATA GENERAL CORPORATION, a foreign corporation, Defendant-Appellant. No. 15387. Supreme Court of New Mexico. September 24, 1984. Rehearing Denied October 25, 1984. Lawrence H. Hill, Paul L. Civerolo, Civerolo, Hansen & Wolf, P.A., Albuquerque, for plaintiff-appellee. *1270 Dua...
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OPINION Defendants moved to dismiss the complaint seeking worker’s compensation benefits for failure to state a claim upon which relief could be granted. Depositions were considered at the hearing on the motion; thus the motion is to be treated as a motion for summary judgment. NMSA 1978, Civ. P.R. 12(b) (Repl.Pamp.1980). The trial court denied the motion. This court granted an interlocut...
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689 P.2d 1274 (1984) 101 N.M. 803 Matthew RANVILLE, Plaintiff-Appellant, v. J.T.S. ENTERPRISES, INC., and The Travelers Insurance Company, Defendants-Appellees. No. 7661. Court of Appeals of New Mexico. September 27, 1984. *1275 Catherine Gordon, Duhigg & Cronin, Albuquerque, for plaintiff-appellant. Stephen M. Williams, Miller, Stratvert, Torgerson & Brandt, P.A., Albuquerque, for defend...
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Pursuant to 20 O.S. 1981, § 1601, et seq., the United States District Court for the Western District of Oklahoma has certified to this Court for answer the following questions of law: 1. Must an oil and gas statement filed by a corporate lien claimant pursuant to 42 O.S.A. §§ 144,146 (1981) also satisfy the provisions of 16 O.S.A. §§ 26, 93, 94 and 95 (1981) in order to be effective? (Disr...
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Employer LeFlore County Sheriff’s Office appeals the November 28, 1983, order of Workers’ Compensation Court awarding benefits to Worker Haskell Baugh for fifty percent permanent partial disability to his *1284body as a whole as a result of a job related cerebral infarction. Employer, who did not request en banc review, claims the stroke was not an accidental injury arising out of and in the cours...
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Red Rock Petroleum Company, as abutting property owner, made application to vacate a portion of a dedicated street easement within the municipal limits of the City of Choctaw. The trial court entered an order granting the application. From this order, City appeals. First, City asserts that 11 O.S.1981 §§ 42-101 through 42-115, under which the proceedings were brought and relief granted, are uncons...
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*143 MEMORANDUM OPINION Petitioner, plaintiff below, petitions this court for review of the decision of the Court of Appeals dismissing his appeal from a judgment entered in behalf of Multnomah County following the granting of its motion for summary judgment. We agree with petitioner’s assertion that the reason given by the Court of Appeals for the dismissal was inappropriate. Nevertheless, w...
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689 P.2d 1292 (1984) 298 Or. 76 Gale A. HOLIEN (Stewart), Respondent On Review, v. SEARS, ROEBUCK AND CO., a Foreign Corporation, Petitioner on review, and Paul Blasko, an Individual, Defendant-Respondent. TC A7905-02100; CA A22566; SC S30513. Supreme Court of Oregon, In Banc. Argued and Submitted July 10, 1984. Decided October 23, 1984. *1293 Mildred J. Carmack, Portland, argued the cause for pe...
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The state appeals from a pretrial order sustaining defendant’s demurrer to the complaint. ORS 138.060(1). We reverse and remand for trial. Defendant was charged with violating ORS 607.045(1) by permitting his horse to run at large upon the land of another within a livestock district. 1 Although ORS 607.045(1) does not specify a culpable mental state, the complaint alleged that defendant acted...
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In this personal injury action, plaintiff sought damages for injuries sustained by his ward when she was struck by a truck. The truck was manufactured by defendant International Harvester Company (I.H.), owned by defendant McLean Trucking Company (McLean Trucking) and driven by defendant James Owens, a McLean employe. Plaintiff alleged negligence against McLean Trucking and Owens and a strict p...
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689 P.2d 1315 (1984) 70 Or.App. 589 STATE of Oregon, Respondent, v. Darrell Wayne GRAHAM, Appellant. 10-83-06170; CA A32307. Court of Appeals of Oregon. Argued and Submitted August 29, 1984. Decided October 31, 1984. John Daugirda, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem. Brenda J. Peterson, Asst. Atty. Gen.,...
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Petitioners appeal from an order of the Land Use Board of Appeals that remanded to Washington County certain portions of a decision granting a conditional use permit for a nonresidential planned unit development on a 218-acre site owned by respondent Standard Insurance Company. ORS 197.850. LUBA’s order essentially upheld the county’s action. Petitioners make six assignments of error. We conclude ...
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Defendant appeals his conviction for driving while under the influence of intoxicants. ORS 487.540. He contends that the trial court erred in denying his motion to suppress evidence of statements he made to the arresting officer, in refusing to allow the testimony of a defense witness and in refusing to admit a defense exhibit. We affirm. We take the facts from the pretrial hearing on defendant...
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In this criminal case, defendant was charged by indictment with one count each of the offenses of attempted rape in the first degree and sexual abuse in the first degree. The trial judge took the attempted rape charge from the jury and, instead, instructed the jury on sexual abuse in the first and second degrees. The jury found defendant guilty of two counts of sexual abuse in the second degree. D...
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689 P.2d 1326 (1984) 70 Or.App. 531 Felipe MASCORRO, Jr., Petitioner, v. The EMPLOYMENT DIVISION of the State of Oregon, Ray Thorne, Administrator, and Tektronix, Inc., Respondents. 83-AB-1575; CA A29655. Court of Appeals of Oregon. Argued and Submitted September 28, 1984. Decided October 31, 1984. Marilyn Lindgren, Oregon Legal Services Corp., Hillsboro, argued the cause and filed the briefs for...
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Defendant appeals his convictions of murder and of tampering with a witness. He assigns five errors, only one of which requires our attention. Defendant contends, and the state concedes, that the trial court erred in imposing a mandatory minimum of 15 years on his life sentence for murder. State v. Macy, 295 Or 738, 671 P2d 92 (1983). The portion of the sentence imposing a 15-year minimum on the l...
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This is a criminal case in which the pertinent events began when a police officer, from a place where he had a right to be, saw an open container of an alcoholic beverage in an occupied automobile. The trial court erred in suppressing evidence seized thereafter. Reversed and remanded for trial....
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Appellant1 is the Secretary of State of Oregon. She refused to accept papers that were filed to nominate a member of respondent Citizen’s Party of Yamhill County as a candidate in the 1984 general election for state representative from House District 29. That district is comprised of part of Yamhill County and of a small area in Marion County. The Citizen’s Party did not have a candidate in the di...
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This matter is before us on a motion by plaintiff-appellant for a temporary remand of the matter to the trial court for further proceedings. For the reasons expressed below, that motion is unnecessary and is denied. Plaintiff Lane was injured in an automobile-pedestrian accident in 1981. He brought an action against Messer, the driver of the vehicle, Honeywell, the owner of the vehicle that Mes...
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Defendant appeals his nonjury conviction for one count of possession of a forged writing and one count of possession of devices to make a forged writing, under U.C.A., 1953, § 76-6-502. At trial, the State introduced evidence that officers had found in a closed attache case taken from the trunk of the car defendant was driving. The sole issue on appeal is whether the trial court erred when it ref...
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Plaintiffs petition this Court for review of an order of the Industrial Commission awarding claimant Jacobs (hereinafter “defendant”) workmen’s compensation benefits. The only question presented is whether defendant suffered a compensable accident in the course of his employment. Defendant is a route salesman for Frito-Lay. He is paid a salary plus commission for supplying Frito-Lay products to st...
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This is a review of the denial of unemployment benefits under U.C.A., 1958, § 35-4-5(a). The claimant said she had left her Utah bank job with “good cause” to obtain other employment in Nevada because she only transferred to another branch of the bank. See Department’s General Rules of Adjudication (A71-07-2) § 365.05. However, she had no definite offer of employment in Nevada nor any starting dat...
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This appeal is from a conviction of attempted robbery.1 The sole point on ap*1339peal is insufficiency of the evidence to prove intent. On March 9, 1982, at approximately 3:00 a.m., defendant entered a 7-11 convenience store. An employee, Criswell, was near the counter stacking groceries, and the assistant manager, McLaughlan, was in the rear, apparently out of sight. Defendant handed Criswell a n...
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This appeal is from the dismissal of a petition for habeas corpus. The three points on appeal concern the admission of evidence, a matter determinable within the sound discretion of the trial court. The appellant claims he was denied his constitutional rights, but alleges no violation of any specific provision. Lack of due process is the only ground that might be implied or suggested. Following a ...
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The defendant, Heather Amicone, a ticket taker at a movie theater, pleaded guilty to an information charging her with a violation of U.C.A., 1953, § 76-10-1204, which prohibits the distribution of pornographic material. The defendant admitted that the tickets she had taken were to a movie that she knew to be pornographic. Section 76-10-1204(2) mandates incarceration for a minimum of seven days fo...
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Unigard Insurance Company settled a prior lawsuit against its insured which arose out of an automobile collision. Subsequently, Unigard sued the City of LaVer-kin for contribution as a joint tortfeasor. The trial court entered summary judgment for the City and Unigard appeals. The principle issue to be decided is whether under the Utah Comparative Negligence Act a joint tortfeasor’s right of ac...
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This case is before us for the third time. Centurian Corporation obtained a tank trailer from Petty Motor Lease, Inc., and transferred it to Cripps. The trailer was stolen and each party sued down the line for recovery. In Centurian Corp. v. Cripps, Utah, 624 P.2d 706 (1981), we held that the “lease” between Petty Motor and Centurian (which was little more than a financing arrangement), as well as...
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The plaintiff, Big K Corporation dba Diamond Transport, a motor common carrier, applied to the Utah Public Service Commission for a certificate of convenience and necessity to transport fluids used in drilling wells for oil over irregular routes between points within the state of Utah, with the exception of Uintah and Duchesne Counties. The PSC denied the application, holding that Big K had fai...
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In response to allegations of religious and racial discrimination in the Box Elder School District, employees of the Utah State Board of Education, after consultation with the superintendent of the Board of Education of the Box Elder School District, developed and prepared a survey form designed to elicit responses concerning discrimination at Box Elder High School. The survey form contained eleve...
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The issues in this case concern a guardian's power to order surgery on an incompetent person who *829 has expressed her opposition to the surgery, and the standards to be applied by courts when facing such a situation. The case arises from the guardian's petition to order surgery filed July 12, 1984, in the Yakima County Superior Court. The evidence at the hearing on the petition s...
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The main issue is a determination of *812who, if anyone, has authority to authorize the withdrawal of life support systems when (1) the patient has only minimal brainstem activity and (2) the patient has been severely mentally retarded since birth, therefore, never expressing his wishes about termination of life support. While this case was on appeal, Joseph Hamlin, the patient/ward, died. Because...
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The State Superintendent of Public Instruction appeals a writ of mandamus ordering him to pay Ocosta School District $115,469.97 as part of Ocosta's 1979-80 allocation of state basic education funds. Ocosta received an equivalent amount in September 1979 from Grays Harbor County as its share of proceeds of a timber sale from a county-owned tax title parcel. The Superintendent deducted the amount f...
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689 P.2d 1387 (1984) Lawrence A. KAAN, Appellant (Employee-Claimant), v. STATE of Wyoming, ex rel. WYOMING WORKER'S COMPENSATION DIVISION, Appellee (Objector-Defendant), Empire Mobile Plumbing, Inc., (Employer). No. 84-44. Supreme Court of Wyoming. November 1, 1984. George A. Clarke, Lusk, for appellant. A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Senior As...
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Appellant suffered a nonfatal heart attack at work, and appeals the trial court’s order disallowing his worker’s compensation claim. The single issue, fashioned by appellant: “Was the medical testimony given coupled with the circumstances of this case sufficient to establish a direct causal connection between the condition under which the work was performed and the cardiac condition as delineated ...
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