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All Reporters → p2d → Volume 695

Opinions in p2d Volume 695

Three separate petitions in error have been filed on behalf of appellants in this case. 1 Each has dealt with matters arising out of the administration of the estate of Lawrence Walker and all have accordingly been consolidated for consideration at this time under the last filed case number. However, the issues raised in the petitions in error filed in case numbers 61,209 and 60,873 have not be...
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OPINION The appellant, Barry C. Clayton, was charged in separate counts of Attempted Oral Sodomy in violation of 21 O.S.1981, §§ 44 and 886, and Burglary in the First Degree in violation of 21 O.S.1981, § 1431, in the Oklahoma County District Court, Case No. CRF-80-3487. The jury returned *5 verdicts of guilty on both counts but could not agree on the assessment of punishment. The trial court...
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OPINION Louis Daniel Golden was charged by Information in Greer County District Court, Case No. CRF-82-17, with the Crime Against Nature (Sodomy), pursuant to 21 O.S.1981, § 886. Appellant waived his right to a trial by jury, and was convicted by the Honorable William Fancher, Associate District Judge, who imposed a five (5) year sentence. We affirm. S.S., a thirteen-year-old boy, had arrange...
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OPINION Victor Lee Huddleston was charged in separate counts with Rape in the First Degree in violation of 21 O.S.1981, § 1114, and two counts of Oral Sodomy in violation of 21 O.S.1981, § 866, in Tulsa County District Court, Case No. CRF-82-460. The jury returned verdicts of guilty on all three counts and set punishment at 10 years imprisonment for rape and at nine years imprisonment on each coun...
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OPINION Donald Lee Fenter was convicted in the District Court of Pontotoc County of Unlawful Possession of Marijuana With Intent to Distribute, Case No. CRF-81-86, and Feloniously Carrying a Firearm, Case No. CRF-81-87, and sentenced to three (3) years imprisonment in Case No. CRF-81-86, and five (5) years imprisonment in Case No. CRF-81-87, the sentences to run concurrently. These cases were c...
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OPINION On appeal from his conviction of Knowingly Withholding Stolen Property After Former Conviction of a Felony, Case No. CRF-81-232, and sentence of twelve (12) years imprisonment from the District Court of Washington County, Oklahoma, the appellant, Darrell Eugene Jones, hereinafter referred to as defendant, raises four assignments of error. The facts of the case are as follows: On July ...
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Paul Dan Hicks appeals the summary judgment entered in favor of Tulsa Dynas-pan. Also challenged is the trial court’s order striking plaintiff’s prayer for punitive damages from his petition. Hicks sought recovery for retaliatory discharge under 85 O.S. 1981 §§ 5 & 6. The trial judge found that punitive damages cannot be recovered in actions brought under 85 O.S. 1981 §§ 5 & 6, and granted...
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Does the evidence of extrinsic fraud support the trial court’s modification of the divorce decree? We hold it does. I After six years of marriage the childless couple was divorced May 11, 1982, at the request of the woman. On April 19, 1983, the man filed a verified petition asking the court to modify the decree under the authority of 12 O.S.1981 §§ 1031(4) and 1033. More specifically, the man all...
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Oregon’s unemployment compensation law, ORS chapter 657, excludes from covered “employment” services performed for certain religious organizations, thus exempting such organizations from taxation to support unemployment benefits. The statutory formula for the exclusion, ORS 657.072(1), deliberately mirrors the corresponding formula of the Federal Unemployment Tax Act, 26 USC § 3309(b)(1) (1982)...
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This is a disciplinary case in which the accused, Russell D. Bevans, is charged by the Oregon State Bar with violations of DR 5-101(A), DR 5-105(A) and DR 5-105(B) of the Code of Professional Responsibility.1 The Bar’s complaint contained three causes arising from the accused’s participation in a series of three loan transactions between Douglas Bowen (Bowen) of All-Risk Management, Inc. (All-Risk...
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Husband appeals from a decree of dissolution that ended the parties’ 22-year marriage. He contends that the trial court erred in awarding wife the “long half’ of the assets as well as permanent spousal support. We disagree. Wife cross-appeals, arguing that the court should have awarded her a certain piece of rental property instead of giving her a one-half interest in husband’s approximately $50,0...
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On December 22,1980, plaintiff was a passenger in an automobile owned and operated by her daughter, Karen Sheppard, when the automobile collided with one operated by defendant Edna Weekly. Plaintiff filed her complaint on December 20, 1982, to recover for personal injuries sustained in the accident, incorrectly alleging that Carlos Weekly, Edna’s husband, was the operator of the vehicle. On Janua...
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Plaintiffs brought this action in Multnomah County Circuit Court as trustees for the Oregon Laborers-Employers Trust Funds to recover contributions alleged to be due from defendants under two labor agreements. The action was brought under the Labor Management Relations Act of 1947, 29 USC § 141 et seq, and the Employee Retirement Income Security Act of 1974, 29 USC § 1001 et se...
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Employer, Columbia Excavating, and its insurer, EBI Companies (employer), seek reversal of the Workers’ Compensation Board’s order which held that claimant had established good cause for his failure to request a hearing within 60 days of the denial of his claim. We hold that the facts of this case do not establish good cause and reverse.1 Claimant sustained a compensable injury on December 16, 197...
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Petitioners filed two claims with the Builders Board arising from the alleged defective construction of their residence. They seek review of the Board’s dismissal of their claims; the two cases are consolidated on appeal. In CA A31473, petitioners seek review of an order dismissing their claim as untimely filed. OAR 812-04-010, in effect at the time the claim was filed, required claims to be recei...
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Petitioner seeks judicial review of a final order of the State Court System Appeals Board. Respondent moves to dismiss on the ground that this court lacks jurisdiction to review SCSAB’s order. We grant the motion and dismiss the appeal. Petitioner was the official court reporter for the Tenth Judicial District. On March 28, 1983, he received a letter from the State Court Administrator informing hi...
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Defendant appeals his convictions for manufacture and possession of a controlled substance, ORS 475.992, on the ground that the trial court should have suppressed evidence seized during a search, pursuant to a warrant, of property he had occupied. He asserts that some of the information in the affidavit supporting the warrant application was the product of an illegal detention and that, without t...
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Argonaut Insurance Companies (Argonaut) petitions for review of a Workers’ Compensation Board order requiring it to accept claimant’s asbestosis claim. Argonaut asserts that the claim is time-barred. We disagree and therefore affirm the Board. Claimant’s last injurious exposure to asbestos occurred on March 9, 1976. At the time, former ORS 656.807(1) provided a five-year limitation period for...
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Defendants Barnettes appeal from a decree of foreclosure, contending that the trial court erred by 1) finding that their sale on contract of certain mortgaged property triggered the due-on-sale clause contained in the mortgage, 2) allowing automatic enforcement of the due-on-sale clause and 3) striking certain equitable defenses. We affirm. In October, 1970, plaintiff loaned $74,000 to Geo...
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Plaintiffs appeal the summary judgment in this declaratory judgment action which determined that decedent’s surviving spouse is entitled to share in the estate. 1 We affirm. On August 29,1979, decedent, David Earl Stevenson (David), and Alberta Hegwod (Alberta) executed a prenuptial agreement. At that time, David had assets of approximately $550,000; Alberta had assets of approximately $3,000...
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37 Cal.3d 920 (1985) 695 P.2d 77 211 Cal. Rptr. 164 FRANK ROA, JR., et al., Plaintiffs and Appellants, v. LODI MEDICAL GROUP, INC., et al., Defendants and Respondents. Docket No. S.F. 24435. Supreme Court of California. February 7, 1985. *922 COUNSEL Miller, Katz, Harlem & Dixon, Robert A. Harlem, Richard L. Katz, Laurence H. Tribe and Arthur E. Schwimmer for Plaintiffs and Appellants. David ...
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Petitioners appeal from an order of the Oregon Liquor Control Commission (OLCC) suspending the Dispenser Class A license of The Chase Restaurant and Lounge or, alternatively, imposing a fine of $1,755 in lieu of suspension. We affirm. In its final order, the commission concluded that petitioners had violated OAR 845-06-035(2) in permitting minors to consume alcoholic beverages and OAR 845-06-03...
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Defendant appeals his conviction for attempting to use a dangerous weapon, ORS 166.220, and for two counts of possession of a controlled substance, contending that the trial court erred in failing to suppress evidence seized from his person following an allegedly illegal stop and frisk. We affirm. On February 18, 1978, at approximately 5 p.m., a Portland police dispatcher notified all patrol un...
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Defendants appeal from the trial court’s denial of their exceptions to an arbitrator’s award and from the court’s entry of judgment on the award. Most of defendants’ arguments are wholly without merit, and those that are colorable are adversely answered by Brewer v. Allstate Insurance Co., 248 Or 558, 436 P2d 547 (1968), and Eugene Educ. Assoc. v. Eugene School Dist. 4J, 58 Or App 140, 648 P2...
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Claimant petitions for reconsideration of an order which dismissed his petition for judicial review of an order of the Workers’ Compensation Board. We allow reconsideration, grant reconsideration and affirm the dismissal. The Board’s order gives the following facts regarding claimant’s condition: “Claimant suffered a compensable injury to his neck, left shoulder and left arm on Novemb...
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695 P.2d 92 (1985) 72 Or.App. 12 In the matter of the Compensation of Dena G. McGehee, Claimant. JELD-WEN, INC., Petitioner, v. Dena G. McGehee, Wausau Insurance Company, and Lumoco, Respondents. 81-10062, 83-07112; CA A32671. Court of Appeals of Oregon. Argued and Submitted December 5, 1984. Decided February 6, 1985. Reconsideration Denied April 5, 1985. Brian L. Pocock, Eugene, argued the cause...
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Jeld-Wen, Inc., seeks review of an order of the Workers’ Compensation Board which held that it, and not a subsequent employer, is responsible for claimant’s compensable condition. Jeld-Wen argues that the Board erred in holding that it was barred from denying the aggravation claim that it had earlier accepted. We affirm. Claimant suffered a compensable injury at Jeld-Wen on October 10,1979. After ...
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Petitioner, a school district, seeks review of an order of the Fair Dismissal Appeals Board which set aside the district’s dismissal of respondent, a permanent teacher. We affirm. The district hired respondent in 1977. Her initial contract provided that she would teach high school and, for additional compensation, also coach tennis, basketball and gymnastics. In 1980 she had become a “perm...
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695 P.2d 102 (1984) Dwaine C. HORTON, Plaintiff and Respondent, v. Virginia H. HORTON, Majestic Investment Company of Denver dba Majestic Mortgage Company and Granite Title Company, and Herbert Halliday, Defendants and Appellants, and All other persons, unknown claiming any right, title, estate, lien or interest in the real property described in plaintiff's complaint adverse to plaintiff's owners...
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Defendants appeal a summary judgment in favor of plaintiff. The district court granted the summary judgment on the issue of defendants’ joint and several liability *111 to plaintiff for breach of Atlas Stock Transfer Company’s (Atlas) duty to transfer shares of Global Oil Company’s (Global) stock in a timely manner under U.C.A., 1953, § 70A-8-401. Defendants also appeal a judgment ...
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103 Wn.2d 645 (1985) 695 P.2d 116 ELMER E. SHORTER, as Personal Representative, Appellant, v. ROBERT E. DRURY, ET AL, Respondents. No. 50601-9. The Supreme Court of Washington, En Banc. January 11, 1985. Davies, Roberts, Reid, Anderson & Wacker, by Denny Anderson, for appellant. Williams, Lanza, Kastner & Gibbs, by Mary H. Spillane, for respondents. DOLLIVER, J. This is an appeal from a w...
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— Harriet M. Gould appeals the dismissal of her action at the close of her case. She challenges the trial court's conclusion that the defendant was immune from liability. We reverse.1 In 1976, Victor Gould's body was found in Robinswood Park. Donald T. Reay, as medical examiner for King County, performed an autopsy. He found that the cause of death was a gunshot in the back of the head. Gould brou...
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— Ole and Barbara Gunderson decided to build a house on their ocean-front lot in the city of Ocean Shores. They contracted the job to David Bickmore. Bick-more mistakenly placed the house 10 feet closer to the ocean-front property line than permitted by the City's zoning code. Eugene and Adriana Radach, neighbors two lots away, complained to the City from almost the beginning, but the City did ...
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— John Wilmer Ward, an Idaho resident, appeals a summary judgment denying his claim for resident-tuition privileges at Washington State University. The sole issue is whether a Washington National Guard reservist is "military personnel" pursuant to former RCW 28B.15.014(2), which entitled military personnel to resident-tuition privileges. We find reservists are not, and affirm. The facts ar...
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— Kevin Charles Hickok appeals the Superior Court judgment finding him guilty of willful failure to return to a work release facility in violation of RCW 72.65-.070. He challenges the use in such prosecution of his prior conviction based upon a guilty plea whose constitutional validity was not determined before the nonjury trial. We affirm. The defendant was placed on probation after pleading g...
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— This case involves the application of a state banking statute, RCW 30.12.080(3), to a national bank in a summary judgment proceeding. We affirm. Gene Bliesner, president and sole shareholder 1 of GMB Enterprises, Inc., was employed as manager of the Sunny-side branch of the Seattle-First National Bank (Seafirst). Delano Arner, a loan officer at the Sunnyside branch, had an agr...
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— Michael Donohoe was convicted for pos*779session of stolen property in the second degree. He appeals, challenging the trial court's denial of his motion to suppress evidence seized after a warrantless search. We affirm. On January 30, 1982, at approximately 1:30 a.m., Vancouver police officers Johnson and McNicholas answered a call to investigate a vehicle prowl. They were met at the scene by a ...
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Facts On November 1, 1982, appellant was sentenced to the state penitentiary for a term of not less than 20 years or more than life for the crime of second-degree murder. This court affirmed that conviction in Cutbirth v. State, Wyo., 663 P.2d 888 (1983). Since incarceration, the appellant has filed various motions for the production of evidence. On July 29, 1983 Mr. Cutbirth filed a docume...
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This appeal results from the district court’s denial of an appeal from an administrative decision of the state board of control denying abandonment and adjudicating certain water rights. The merits of the board’s decision are not at issue. The board issued its decision on November 1, 1983. The notice of appeal was not filed in the district court until December 30, 1983. The district court dismisse...
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38 Cal.3d 64 (1985) 695 P.2d 186 211 Cal. Rptr. 99 SOUTHERN CALIFORNIA GAS COMPANY, Petitioner, v. PUBLIC UTILITIES COMMISSION, Respondent. PACIFIC TELEPHONE AND TELEGRAPH COMPANY, Petitioner, v. PUBLIC UTILITIES COMMISSION, Respondent. PACIFIC GAS AND ELECTRIC COMPANY, Petitioner, v. PUBLIC UTILITIES COMMISSION, Respondent. Docket Nos. S.F. 24603, 24605, 24606. Supreme Court of California. Febru...
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I dissent. While I agree with most of the rationale of the majority opinion, I am concerned with the effect of a reversal on the administration of justice. These crimes were committed in early 1978, seven years ago. To require a retrial after this long passage of time casts an unfair burden on the memories of witnesses and on both the prosecution and defense. Since there is no question of the resp...
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Opinion Defendant appeals from a conviction of second degree murder and unlawful administration of methamphetamine. The principal *183 question on appeal is whether the trial court erred in allowing the prosecution to introduce the preliminary hearing testimony of a key witness who was unavailable to testify at the trial. I. On August 15, 1980, a doctor examined Iri...
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38 Cal.3d 100 (1985) 695 P.2d 220 211 Cal. Rptr. 133 HUNTINGTON PARK REDEVELOPMENT AGENCY, Petitioner, v. MICHAEL A. MARTIN, as Secretary, etc., Respondent. Docket No. L.A. 31861. Supreme Court of California. February 28, 1985. *103 COUNSEL Michael B. Montgomery, James Warren Beebe, John G. Perenchio, Kindel & Anderson and Steven P. Rice for Petitioner. Jones, Hall, Hill & White, Robert G...
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695 P.2d 227 (1985) Robert E. JACKSON, Appellant, v. STATE of Alaska, Appellee. No. 7214. Court of Appeals of Alaska. February 15, 1985. *228 Michael S. Pettit, Asst. Public Defender, Kenai, and Dana Fabe, Public Defender, Anchorage, for appellant. Anne Carpeneti, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee. Befo...
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OPINION Clifton Douglas Smaker was convicted, after a jury trial, of assault in the third degree. AS 11.41.220(a)(1). He appeals, contending that the trial court erred in refusing to allow him to call a defense witness whose name was not disclosed at jury voir dire. We reverse. At the time of the alleged assault, around 3:00 p.m. on July 7, 1983, both Smaker and the victim, Grafton Solomon,...
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*242 OPINION Theodore Painter, Jr., was charged with unlawful fishing for tanner crab in violation of state regulations. 5 AAC 35.510(1). Both the state and Painter agreed that the fishing occurred in the Fishery Conservation Zone (FCZ), that is, between three and two hundred miles from shore. Painter moved to dismiss. After briefing and oral argument, the motion was granted on the ground tha...
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OPINION James Goenett was originally charged with three counts of sexual assault in the first degree, in violation of AS 11.41.-410(a)(1). He was convicted of one count upon entering a plea of no contest; the two remaining counts were dismissed. At the time of Goenett’s crime first-degree sexual assault was a class A felony, punishable by a maximum term of twenty years. Presumptive sentences of te...
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OPINION I. Michael Andrejko was convicted of one count each of escape in the second degree, *247burglary in the second degree, assault in the third degree, and attempted kidnapping, and two counts of criminal mischief in the second degree. AS 11.56.310(a)(1)(A); AS 11.46.310(a); AS 11.41.220(a); AS 11.-'31.100(a); AS 11.41.300(a)(1)(E); and AS 11.46.482(a)(4). Andrejko was ordered to serve a total...
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Philip Gallegos (claimant) asks us to review a decision of the court of appeals, Gallegos v. Industrial Commission, 144 Ariz. 31, 695 P.2d 280 (1984), denying claimant rearrangement of his previous workman’s compensation award. In reaching that conclusion the court held claimant *2 was bound by the actual facts in existence at the time of the previous award an...
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This petition for review arises out of a wrongful death action. We accepted review to consider whether Yuma County effectively delegated the duty of care it owes “mental-hold” patients, and to consider whether the trial court erred in failing to instruct the jury on the special duty of care owed to patients known to have suicidal tendencies. The relevant factual and procedural background of thi...
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144 Ariz. 12 (1985) 695 P.2d 261 STAINLESS SPECIALTY MANUFACTURING COMPANY, Petitioner Employer, State Compensation Fund, Petitioner Carrier, v. INDUSTRIAL COMMISSION OF ARIZONA, Respondent, Don D. Appleton, Respondent Employee. No. 17459-PR. Supreme Court of Arizona, En Banc. January 31, 1985. *13 Robert K. Park, Chief Counsel, State Compensation Fund by W. Smith Michael, Jr., Tucson, for petiti...
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OPINION This is an appeal from the trial court’s denial of plaintiff-appellant’s motion for a new trial in a wrongful death action, which resulted from decedent’s suicide. The relevant facts are not in dispute. On June 7, 1978, appellant’s son, Bobby Alcaida, committed suicide while held at appellee Desert Manor Convalescent Center’s (Desert Manor) health care facility located in Yuma, Arizona. T...
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In this special action — Industrial Commission, we must determine whether the administrative law judge (AU) erred in finding that claimant had failed to prove a post-award reduction in his earning capacity which would have entitled claimant to a rearrangement or readjustment of compensation. *33Claimant was employed as a laborer by employer, Maricopa County, at the time of his injury of January 9,...
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OPINION B. Michael McKinley, former marshal of the Town of Fredonia, Arizona, brought this action against the town to recover compensation for overtime he alleged he had worked during his employment. At the close of all the evidence, the trial court directed a verdict in favor of the town. On appeal we must determine whether the trial court erred in holding that McKinley was limited to taking com...
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OPINION In both of these cases, individuals were arrested for driving under the influence of intoxicating liquor and were advised that failure to submit to an intoxication test would result in the suspension of their respective licenses under the implied consent statute, A.R.S. § 28-691(B). Both refused to submit to the test. However, neither was advised that he or she had a right to have a sec...
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dissenting in part: I dissent in People v. District Court of the Second Judicial District (No. 84SA322) from that part of the court’s opinion which directs the respondent court to make additional findings with respect to the defendant’s motion to suppress verbal evidence. The respondent court, in my view, correctly determined that the governmental acquisition of testimonial evidence from two perso...
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In this action challenging certain actions taken by defendant commissioner of insurance, J. Richard Barnes, the trial court entered summary judgment for defendant, and plaintiffs appeal. We affirm. The plaintiff, Alias Smith & Jones, Inc., operated a restaurant called Pumpkin’s Finger in Pueblo, Colorado, on property leased from plaintiff Hannibal Hayes & Kid Curry, Inc. The restaurant was...
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Plaintiffs brought this tort action against two non-resident corporations and one nonresident individual alleging fraud, misrepresentation, and negligence, surrounding the execution of a sales contract, and an extended warranty agreement, and also intentional interference with contractual rights. Service of process was accomplished pursuant to the provisions of the “Long-Arm Statute,” § 13-1-124, ...
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Defendant, John Jesus Hernandez, appeals from the judgment of conviction entered on jury verdicts finding him guilty of one. count of unlawful distribution, manufacturing, dispensing, sale, and possession of controlled substances, and one count of conspiracy to commit the crime of unlawful sale or distribution of a controlled substance. We affirm. *310 I. Defendant first asserts that the tr...
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Plaintiff, Ann Agnello, appeals from the trial court’s dismissal of her complaint against the Adolph Coors Company (Coors). We affirm. Coors refused to hire plaintiff for a jump shift position as a lab technician because of her diabetic condition. The pertinent facts are set forth in Agnello v. Adolph Coors Co., 689 P.2d 1162 (Colo.App.1984). That case involved plaintiff’s appea...
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Plaintiffs, Michael and Nancy College, appeal from the trial court judgment concerning a real estate transaction involving defendants, J. Mark Scanlan, Futura Properties, Ltd., Poole & Co. Realtors, June Steely, Lakewood Megapolitan Mortgage Co., Megapolitan Mortgage Co., and Michael Stafford. We affirm in part and reverse in part. Plaintiffs presented five claims for relief to the trial c...
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The plaintiffs made several loans to one William Ridinger, Jr., who was a real estate salesman operating under the real estate broker’s license of the defendant Re/Max East, Inc. When Ridinger defaulted in his payments and on other terms of the agreements, the plaintiffs sued Riding-er, Re/Max, and others involved in the transaction. The action against Re/Max was based on allegations that it wa...
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*516 OPINION OF THE COURT BY A clash of views over the acquisition of a building to house the offices of the Estate of Bernice Pauahi Bishop culminates in an appeal by Ex-trustee Hung Wo Ching and a cross-appeal by Trustee Matsuo Takabuki from ajudgment and order of the Circuit Court of the First Circuit on Takabuki’s “Bill for Instructions and Cláim for Surcharge Against Hung Wo...
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*395 OPINION OF THE COURT BY In this action based upon a real estate listing agreement, defendants James Stinson (Stinson), Lois Bruce (Bruce), who is personal representative of the estate of Robert Bruce, 1 and Sanford Langa (Langa) appeal from the June 28, 1982 judgment in favor of plaintiff Harold Lundburg (Lundburg). We reverse. Although the appeal raises seve...
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*412 OPINION OF THE COURT In appealing his conviction on two charges of knowingly possessing marijuana in violation of Hawaii Revised Statutes (HRS) § 712-1249 (1976), 1 defendant Chuck Andrew Blake (Defendant) raises a constitutional issue. He contends that the application of HRS § 712-1249 results in an unconstitutional deprivation of his right to the free exercise of a religion 2 known...
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Mrs. Curtis filed a claim for benefits about the 1st of May, 1982, which claim was effective on May 9, 1982. The Department of Employment issued a Monetary Determination, indicating that she had no wages for the relevant base period, and that she was therefore ineligible for benefits. Mrs. Curtis protested, arguing that she was entitled to claim one-half of her husband’s earnings in 1981 for purpo...
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ON DENIAL OF PETITION FOR REHEARING In June of 1979 Fred and Mary Tarbox, doing business as M & K Sales, a used car proprietorship, were issued a Notice of Deficiency Determination by the Idaho Tax Commission. Most of the tax asserted in the deficiency notice is sales tax on the sales of licensed motor vehicles; however the assessment also includes a fifty percent fraud penalty. The penal...
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695 P.2d 346 (1984) 107 Idaho 961 COUNTRY INSURANCE COMPANY, Plaintiff-Appellant, v. AGRICULTURAL DEVELOPMENT, INC., an Idaho corporation, Defendant-Respondent. No. 15296. Supreme Court of Idaho. November 30, 1984. Rehearing Denied February 20, 1985. *347 Michael G. Brady of Brady, McDaniels & Mathews, Boise, for plaintiff-appellant. John J. Healzer of Hart & Healzer, Jerome, for defendan...
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This case involves the legal effect of an exculpatory contract releasing the Sun Valley Co., a licensed outfitter and guide, from any liability arising out of an injury to one of its guests.1 In October, 1981, plaintiff was attending a National Transportation Educational Fraternity convention in Sun Valley, Idaho. A horseback trail ride was one of the activities provided by the Sun Valley Company ...
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695 P.2d 369 (1985) 107 Idaho 984 Sergio SALINAS, Plaintiff-Appellant, v. Richard P. VIERSTRA and Norma P. Vierstra, husband and wife, dba Classic Dairy, Defendants-Respondents. No. 15236. Supreme Court of Idaho. January 10, 1985. Rehearing Denied February 27, 1985. *370 Lloyd J. Webb, of Webb, Burton, Carlson, Pedersen & Paine, Twin Falls, for plaintiff-appellant. Robert M. Tyler, Jr., of El...
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On November 30, 1978, Dicky Earl Gee pled guilty to a charge of raping a 55-year-old Oakley woman. He was sentenced to an indeterminate 20-year term, set to run consecutive to a 5-year sentence for an unrelated burglary conviction. The trial court specially recommended psychiatric counseling. A motion to reconsider sentence was filed, but was denied as being untimely. No appeal was taken from the ...
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Appellant Canyon County appeals from a summary judgment order requiring Canyon County to remit $101,361.00 in sales tax refund moneys to Canyon Highway Dist. No. 4. We affirm. This controversy began in June of 1980 when the Canyon County commissioners created a highway study commission to study the question of whether Canyon County should reorganize the county’s secondary road system. Pursuant to ...
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This is an appeal from the district court’s appellate judgment, which reversed the magistrate’s dismissal of Northwest Health Care’s claim to reimbursement of moneys owing for care rendered to one Lillian Blackman during the months of June to October of 1980. There is no dispute that medical services were extended to this patient, nor that the patient was eligible for Medicaid during these months,...
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We are asked by this appeal to decide whether pursuant to I.C. § 31-3505 a medical indigency application submitted to a board of county commissioners, and neither approved nor denied in writing by the commissioners within sixty (60) days, is automatically approved. I.C. § 31-3505 provides: If the board of county commissioners fails to act upon an application within sixty (60) days from the receipt...
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Appellant Sinclair sued to recover on defendants’ personal guaranties given to secure payment on an open account to Little America Refining Company, which was allegedly assigned to Sinclair. The district court granted summary judgment to the individual defendants. We reverse and remand, holding that material issues of fact remain which preclude summary judgment. Siepert’s Distributing, Inc...
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dissenting. I disagree with both the conclusion of the majority and its reasoning process and therefore I dissent. Norman Mitchell, the deceased, was the insured under a “Certificate of Accidental Death Insurance” insuring against specified loss “resulting directly and independently of all other causes from bodily injuries caused by accident occurring while this policy is in force as to the Applic...
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This is an appeal from a judgment in favor of defendants-respondents in a boundary dispute action wherein plaintiffs-appellants Pointner sought to quiet title to certain property by establishing the west boundary line of the Pointner property. We affirm. Pointners brought an action to quiet title to the North half of the Southwest lk and the South half of the Northwest lk ...
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Claimant was employed as a dental assistant. After five months, her employer began training her to make dentures. By having the denture work done at the work-site, the employer saved money in overhead expenses. A year later, the employer, dissatisfied with the quality of denture work performed, told claimant that he was going to start a new procedure to motivate the employees to complete the de...
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This is an appeal from an order of the Industrial Commission denying unemployment compensation benefits to claimant Puckett because he was discharged for misconduct. We affirm. Puckett had been a correctional officer at the Idaho Correctional Institution for six years prior to his discharge. Three days before his discharge, Puckett had attended an employees’ association picnic and severely...
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Mutual of Enumclaw appeals from a declaratory judgment determining that a 1967 International dump truck owned by Wood By-Products, Inc., was covered by a policy of insurance issued to an affiliated company, Zirbel Transport, Inc. Mutual of Enumclaw asserted that there was no coverage, in part because the property listed in the policy included a 1959 International truck but not the 1967 truck. The...
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David Riggs appeals from a summary judgment in favor of John Colis. He contends the court erred in finding that there was no factual basis to sustain a civil cause of action against Colis for “aiding and abetting an assault and battery” upon Riggs by preventing another person from rendering assistance to Riggs during the assault. We agree. We vacate the summary judgment and remand for further pro...
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Donald W. Fink pled guilty to second degree kidnapping, I.C. §§ 18-4501, 18-*10324503, and aggravated battery, I.C. §§ 18-903(a), 18-907(b). He received concurrent fifteen-year indeterminate sentences for these offenses. Because a deadly weapon was used during the commission of the battery, the state sought enhancement of the penalty imposed for that crime. Pursuant to I.C. § 19-2520, an additiona...
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A magistrate ordered Albert Valentine to pay child support in a civil proceeding brought under the Revised Uniform Reciprocal Enforcement of Support Act, I.C. §§ 7-1048, -1089 (RURESA). Valentine’s appeal to the district court was dismissed for his failure to pay the estimated fee for a transcript of the hearings in the magistrate division, as ordered by the district judge. Valentine has appealed ...
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George Eisele was tried for aggravated battery after he discharged a shotgun up a stairway during a fight at a party on May 15, 1981. A woman at the party was hit in the buttocks and on the ankle by a ricocheting shot. The jury was instructed on aggravated battery and on what were stated to be the necessarily included offenses of battery, aggravated assault, and assault. The jury found Eisele not...
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This is an appeal by the Board of Cosmetology from a declaratory judgment hold *1039 ing that the Board may not impose an educational requirement upon cosmetologists from other states who apply for reciprocal licenses in Idaho. On a related issue, the judgment also declares that Glenda Rawson, the applicant in this case, has not engaged in any conduct disqualifying her from obtaini...
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This case began with a punch in the face. We are asked to decide whether the resulting personal injury was covered by an insurance policy. The district court held that the injury was the product of an intentional tort and, therefore, was excluded from coverage. The court further held that the insurance company was not required to defend its insured against the claim. We affirm. The punch w...
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We are asked to decide whether relief should be granted from a default judgment entered against a party of dubious mental competency. We hold that it should. W. John Stirm and his wife Rosie sued their neighbor, Curtis Puckett, alleging that he had created a private nuisance, had slandered them, and intentionally had caused them emotional distress, by painting offensive words in public vie...
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Juan Vasquez was charged with second degree murder. Pursuant to a plea bargain agreement Vasquez pled guilty to voluntary manslaughter and received an indeterminate sentence of four years. Vasquez appeals, contending his plea of guilty should not have been accepted by the trial court because the plea was not “voluntarily and knowingly” made. Particularly, Vasquez argues the trial court failed, be...
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While the two cases before us were not consolidated on appeal, since they both arose from the same set of facts, they were consolidated for purpose of oral argument and will be disposed of by this single opinion. FACTS IN CASE NO. 15148 Ford Jack Robison was charged with reckless driving in the Magistrate Division of the Seventh Judicial District for Madison County on July 21, 1982. T...
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236 Kan. 687 (1985) 695 P.2d 444 PEOPLES NATIONAL BANK AND TRUST, Appellant, v. EXCEL CORPORATION, Appellee. No. 56,844 Supreme Court of Kansas. Opinion filed February 20, 1985. Winton A. Winter, Jr., of Stevens, Brand, Lungstrum, Golden & Winter, of Lawrence, argued the cause and was on the briefs for appellant. Todd N. Thompson, of Barber, Emerson, Six, Springer & Zinn, of Lawrence, arg...
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This is an appeal by the Kansas Department of Human Resources (KDHR). of the district court’s decision granting summary judgment to the plaintiff, Morton Buildings, Inc., *198 (Morton) on its appeal of an administrative decision. KDHR is the statutory assignee of wage claims of two former employees of Morton. K.S.A. 44-324(b). The wage claims were granted by administrative order bu...
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OPINION, ORDER AND JUDGMENT Richard C. Lussy appeals from an order of the District Court, Third Judicial District, Deer Lodge County, the Hon. Henry Loble presiding, from an order dismissing Lussy’s complaint against J. Michael Young. The only issue on appeal is the propriety of the District Court’s dismissal of Lussy’s complaint against J. Michael Young. In cause No. DV-84-72 in the same D...
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OPINION, ORDER AND JUDGMENT Richard C. Lussy appeals from an order of the District court,, Third judicial District, Deer Lodge County, the Hon. Henry Loble presiding, from an order dismissing Lussy’s complaint against J. Michael Young. The only issue on appeal is the propriety of the District Court’s dismissal of Lussy’s complaint against J. Michael Young. In cause No. DV-84-72 in the same Distric...
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delivered the Opinion of the Court. This is an appeal from a summary judgment order of a mechanic’s lien, filed in the District Court of the Fifteenth Judicial District of the State of Montana, for the County of Sheridan. Appellant Sheridan Ready-Mix (Sheridan) filed a complaint for foreclosure on a mechanic’s lien against the First Congregational Church of Plentywood Montana (Church)...
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delivered the Opinion of the Court. Verlin R. Wippert and Loretta Wippert Rex, plaintiffs below, appeal from a decision of the Ninth Judicial District, Glacier County, ordering the Wipperts to pay the Blackfeet Tribe a deficiency judgment of $14,330.59. We reverse. This case was originally filed as a quiet title action, and was first considered by this Court in Wippert v. Blackfeet Tribe (M...
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delivered the Opinion of the Court. The respondents were counsel for the appellant in a debt action brought by First Security Bank of Deer Lodge. The bank obtained a favorable judgment on December 1, 1978, in Powell County and a judgment was filed in both Powell County and Deer Lodge County. The bank proceeded toward having the appellant’s property sold at a sheriffs sale; however, the appellan...
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delivered the Opinion of the Court. Milan R. Ayers appeals the May 24,1984, order of the Ninth Judicial District Court, Toole County, granting Miguel A. Perez-Lizano partial summary judgment in an action against Ayers to collect a $40,000 promissory note. The trial court judgment is affirmed. Perez-Lizano and Ayers were in the business of developing oil and gas property. Sunlite International...
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695 P.2d 471 (1985) STATE of Montana, ex rel., POLARIS INDUSTRIES, INC., Relator, v. The DISTRICT COURT OF the THIRTEENTH JUDICIAL DISTRICT, In and For the COUNTY OF YELLOWSTONE, the Honorable Diane G. Barz, Judge presiding, Respondents. No. 84-454. Supreme Court of Montana. Submitted January 25, 1985. Decided February 15, 1985. McNamer, Thompson & Cashmore, Charles R. Cashmore, Jr. argued, B...
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695 P.2d 473 (1985) In re the MARRIAGE OF Linda H. SARSFIELD, Petitioner and Respondent, and Michael J. Sarsfield, Respondent and Appellant. No. 84-277. Supreme Court of Montana. Submitted on Briefs October 18, 1984. Decided February 20, 1985. Deirdre Caughlan, Butte, for respondent and appellant. Garnaas, Hall & Pinsoneault, Missoula, for petitioner and respondent. *474 HARRISON, Justice. Th...
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OPINION Plaintiffs brought suit in district court to recover damages for injuries sustained in an automobile accident with defendant. The district court granted plaintiffs' pretrial motion to exclude any evidence relating to plaintiffs’ failure to use available seat belts. The jury found defendant 100 percent at fault and awarded damages to plaintiffs. Defendant then filed a motion for new tria...
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OPINION This suit was brought in the district court of Bernallilo County to determine the paternity of an illegitimate minor child, and to require the respondent to provide child support. The court dismissed the action for lack of personal jurisdiction over the out-of-state respondent, Harry Dayton, Jr. (Dayton). Petitioner Angelica Garcia (Garcia) appeals. We affirm. This is a case of first ...
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OPINION We affirm the decision of the Court of Appeals which reversed the trial court’s judgment quieting title to the disputed boundary line area in plaintiffs and enjoining defendant from maintaining the fence on the subject land. Since neither party proved the strength of their respective claims to the disputed land, we granted certiorari merely to clarify the Court of Appeals’ decision, to dir...
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OPINION The State of New Mexico brought suit in Chaves County to adjudicate water rights in the Rio Hondo, Rio Ruidoso and Rio Bonito stream systems, all tributaries of the Pecos River in the Pecos Valley Artesian Basin. Twice the matter was referred by the court to special masters and hearings were held in 1976 and 1981. Both special masters, after hearing relevant evidence, came to similar co...
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OPINION The Court of Appeals has certified this workmen’s compensation case to this Court pursuant to NMSA 1978, Section 34-5-14(C)(2) (Repl.Pamp.1981), which provides for certification to the Supreme Court of matters that involve issues of “substantial public interest that should be determined by the supreme court.” The appeal presents two issues: whether the award by the trial court to one of...
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OPINION Plaintiffs, residents of the City of Farmington, New Mexico, own property located within an improvement district created by the City of Farmington. The district was created under the authority of NMSA 1978, Sections 3-33-1 to -43 (Repl.Pamp.1984). Plaintiffs were assessed for part of the costs of certain road improvements within the district. Subsequently, plaintiffs filed a petition in d...
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OPINION Plaintiff appeals the trial court’s granting of defendants’ motion for summary judgment. We discuss whether defendants were obligated to pay benefits when plaintiff returned to work, whether plaintiff was being paid at the proper rate, and whether reasonable medicals were being provided. We affirm. Plaintiff was injured in a vehicular accident arising out of and in the course of his employ...
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695 P.2d 498 (1985) RICKS EXPLORATION COMPANY, Plaintiff-Appellant, v. OKLAHOMA WATER RESOURCES BOARD, Defendant-Appellee, and RICKS EXPLORATION COMPANY, Plaintiff-Appellant, v. OKLAHOMA WATER RESOURCES BOARD, Defendant-Appellee. Nos. 58350, 59172. Supreme Court of Oklahoma. October 16, 1984. As Corrected October 16, 1984. Rehearing Denied February 26, 1985. Sheryl L. Stevens, Musser & Bunch,...
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The parties in this case, appellee Pamela Norris and appellant Robert M. Norris, were divorced by decree of the trial court entered October 10,1979. Both parties had agreed to the terms of the divorce decree prior to its approval by the trial court. That portion of the decree giving rise to the present controversy provided: “IT IS FURTHER ORDERED, ADJUDGED AND DECREED BY THE Court that plaintif...
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The dispositive question is whether an initial waiver of trial by jury, and of the right to transfer a cause from the small claims docket to the regular docket of the district court, remains binding after the judgment is reversed on appeal and remanded for a new trial. Edward A. Seymour, appellee, and Kelli Ann Swart, appellant, were involved in an automobile collision in which each of their ca...
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Appellant, Robert K. Bell Enterprises, Inc., owns and operates a facility known as Bell’s Amusement Park. Bell’s is located upon land comprising a portion of the Tulsa County Fairgrounds. The Tulsa County Fairgrounds Trust Authority leases the entire Tulsa County Fairgrounds from Tulsa County. The Trust Authority, in turn, subleases that portion of the Fairgrounds upon which the Amusement Park is...
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Appellants contend they are collectors of antique and old classic cars. On February 2, 1980, six cars were parked on the front lawn of Appellants’ residence located within the Warr Acres city limits. Only one of the cars was fully operable; the other five were in various stages of disrepair. On that date, Officer Jones of the Warr Acres police department delivered notices (one for each car) to App...
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On February 6th, defendant Steven Plavchak was driving north on Highway 77 some four miles north of Lexington, Oklahoma, when he lost control of the vehicle on. the snow and ice covered highway. Plavchak’s automobile turned sideways and collided with a vehicle being driven by appellant Ronald A. Anderson. Both Anderson and Plavchak received injuries as a result of the collision. Roy Thompson, a...
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OPINION The appellant, Mark Eugene Lewis, was convicted in Tulsa County District Court, *529Case No. CRF-81-1315, of Murder in the First Degree, 21 O.S.1981, § 701.7(A). The appellant waived his right to a jury trial, and was tried before the Honorable Joe Jennings, District Judge, who sentenced him to life imprisonment. He appeals, and we reverse and remand for a new trial. The dispositive issue ...
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695 P.2d 531 (1985) Michael NEWBURY, Appellant, v. The STATE of Oklahoma, Appellee. No. F-82-672. Court of Criminal Appeals of Oklahoma. January 2, 1985. As Corrected January 4, 1985. Rehearing Denied March 8, 1985. Patti Palmer, Deputy Appellate Public Defender, Norman, for appellant. Michael C. Turpen, Atty. Gen., Tomilou Gentry Liddell, Asst. Atty. Gen., Oklahoma City, for appellee. *533 OPI...
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OPINION Kirk Wayne Brogie was convicted of first degree felony murder, and was sentenced to death, in Cleveland County District Court, Case No. CRF-79-640. On appeal, he presents fifteen assignments of error. The conviction arose out of the disappearance of Ms. Leslie Gail Buford on the evening of August 23, 1979. It appears that appellant and three passengers, John Webster, David Owens and D...
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OPINION William Thomas Cartwright was charged in the District Court of Muskogee County, Oklahoma, for the crimes of Murder in the First Degree, and Shooting with Intent to Kill, Case No. CRF-82-192. He was granted a change of venue to Cherokee County, Oklahoma. The jury before which he was tried returned verdicts of guilt on both counts, sentenced him to death for the murder, and to a term of s...
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695 P.2d 556 (1985) In the Matter of the ADOPTION OF Jeremy Levi BLEVINS, A Minor Child. Arthur Lee BLEVINS, Appellant, v. Gary Joseph THOMAS and Brenda Gail Thomas, Appellees. No. 60042. Court of Appeals of Oklahoma, Division No. 1. August 28, 1984. Rehearing Denied October 23, 1984. Certiorari Denied February 12, 1985. Released for Publication February 15, 1985. David G. Trojan, Enid, for appel...
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This action comes on for review of a proceeding below in which the trial court ordered Jeremy Levi Blevins, a minor child, eligible for adoption without the consent of his natural father, appellant, Arthur Lee Blevins, (Father). Appellees Brenda Gail Thomas (Mother) and Gary Joseph Thomas, Mother’s present husband, petitioned the court for the above order under 10 O.S. 1981 § 60.6 (Consent of pare...
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After helping raise two children, the 38-year-old woman asked the court to dissolve her 20-year-long marriage to the defending man. The court did so. He also divided the marital estate and granted the woman an alimony judgment. In his appeal the man does not complain of the divorce but of the property division and the alimony judgment. The former, he says, inequitably deprives him of a fair share ...
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This case presents an issue of first impression under the Oregon Rules of Civil Procedure. The issue is whether service of summons on an individual by certified mail, return receipt requested (restricted delivery), is valid service pursuant to ORCP 7. We hold that, under the facts of this case, it is. Plaintiff mailed the summons and complaint to defendant at a particular address, certifie...
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In a consolidated petition, the state seeks review of two decisions of the Court of Appeals interpreting the statutory provision for imposing minimum terms of imprisonment on persons who use or threaten to use a firearm in the commission of a felony. The statute in question provides that when a defendant has used or threatened to use a firearm during the commission of a crime, the court shall i...
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Reversed. State v. Soriano, 298 Or 392, 693 P2d 26 (1984)....
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dissenting. Defendant was convicted of Criminal Trespass in the Second Degree, a Class C misdemeanor for which the maximum allowable sentences are a jail term of 30 days and a $500 fine. ORS 164.245, 161.615, 161.635. Originally charged with burglary, she already had been jailed for 60 days pending trial, which ordinarily would be credited against any jail sentence. ORS 137.370, 137.390. Instead o...
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This is a forcible entry and detainer action. ORS 105.105-105.165. Plaintiff appeals from an order granting a new trial after a jury verdict for plaintiff on defendants’ counterclaim. The issue, in its simplest form, is whether, after a verdict is received and the jury is discharged, the verdict may be set aside and a new trial granted because five of the six jurors say that the verdict given was ...
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695 P.2d 579 (1985) 72 Or.App. 187 MINNESOTA BOND Ltd., Dba All-Ways Hair & Care Port, an Oregon Corporation, Respondent, v. ST. PAUL MERCURY INSURANCE COMPANY, a Minnesota Corporation, Appellant. 31205; CA A27859. Court of Appeals of Oregon, In Banc. Argued and Submitted May 16, 1984. Resubmitted November 7, 1984. Decided February 13, 1985. *580 I. Franklin Hunsaker, Portland, argued the cau...
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Respondents move to dismiss this petition for judicial review of an order of the Workers’ Compensation Board on the ground that the order, which remands the case to the referee for a determination of extent of disability, is not appealable. We agree. See Dean v. SAIF, 72 Or App 16, 695 P2d 90 (1985). Motion allowed; judicial review dismissed....
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— Mr. and Mrs. Sparks appeal from a judgment for $6,365.33 against Douglas County for the destruction of seven fruit-bearing trees in their orchard. They contend the judgment sum must be trebled under RCW 64.12.030. We reverse in part and remand for trebling of damages. In the spring of 1950, Mr. Sparks was contacted regarding a request by Douglas County to extend Columbia Drive, now Empir...
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— Jose Sandomingo shot at Ross Hill; a jury convicted him of second degree assault. He contends here that he should have been tried as a juvenile because he does not know how old he is, that he should have been provided an expert to testify concerning his state of mind at the time of the incident, and that the court should have instructed the jury on voluntary intoxication. We affirm. On July 1...
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— Lorenzo Hilyard has filed a personal restraint petition in which he seeks the vacation of his guilty plea to second degree assault. He contends (1) that he was unaware of the elements of the crime, (2) that a factual basis was not established for the plea, (3) that the court "coerced" him into pleading guilty by agreeing to run his state sentence concurrent with his federal parole revocation, an...
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— Wayne C. Smith appeals a judgment on a jury verdict adverse to his products liability claim and the trial court's dismissal of his Consumer Protection Act (CPA) claim. He contends: (1) the special verdict form was improper; (2) his CPA claim should have gone to the jury; and (3) testimony by his expert regarding a survey taken by a consultant for Sturm, Ruger & Co., Inc. (Sturm) was admissibl...
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— Norman and Carolyn Bishop appeal the dismissal of their trade name infringement complaint seeking to enjoin the use of the name "Window World" by a similar drapery business. We reverse. In 1971, Carolyn Bishop began a drapery business in Spokane and obtained a registered tax number from the State of Washington under the name of Carolyn's Window World. Operating by referral rather than co...
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— Eugene R. Spring appeals the trial court's decision affirming the Department of Labor and Industries' closure of Mr. Spring's permanent partial disability award at 42 percent of the maximum allowable for unspecified disabilities. We reverse and remand for a new trial. *752 This is the second time this case has come before us. We originally affirmed the Department's decision in a...
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695 P.2d 617 (1985) Charles Arthur POTE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). No. 83-245. Supreme Court of Wyoming. February 14, 1985. *620 Leonard D. Munker, State Public Defender, Sylvia Lee Hackl, and Martin J. McClain, Appellate Counsels, and Denise Nau, Asst. Appellate Counsel, Wyoming Public Defender Program, Cheyenne, for appellant. Appellant filed a brief ...
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This appeal is from the court’s denial of appellant’s petition for post-conviction relief. Appellant contends that his plea of guilty was improperly accepted by the trial court. He also raises as an issue the fact that he was not allowed to appear personally at his post-conviction relief hearing. We will affirm. On January 6, 1983, appellant pled guilty to the unauthorized use of an automobil...
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Appellant was convicted for delivering controlled substances. The jury misread the court’s instructions and also found appellant guilty of lesser included offenses. After determining the jury’s intent the trial court sentenced appellant on the two principal charges of delivery of a controlled substance and nullified the jury’s verdict on the lesser offenses. The issue on appeal is whether the c...
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695 P.2d 640 (1985) Edwin Earl BROOM, also known as Eddie Opendack, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). No. 84-33. Supreme Court of Wyoming. February 22, 1985. Rehearing Denied March 26, 1985. *641 Leonard D. Munker, State Public Defender, Sylvia Lee Hackl, Appellate Counsel, Wyoming Public Defender Program, Martin J. McClain, Asst. Appellate Counsel, Wyoming Pub...
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695 P.2d 647 (1985) WYOMING REFINING COMPANY, Appellant (Defendant-Employer), v. Clarence A. BOTTJEN, Appellee (Plaintiff-Employee). No. 84-182. Supreme Court of Wyoming. February 22, 1985. Rehearing Denied March 19, 1985. Stanley K. Hathaway and Rick A. Thompson of Hathaway, Speight & Kunz, Cheyenne, for appellant. *648 Donald B. Hansen of Jones, Dumbrill & Hansen, Newcastle, for appelle...
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Opinion This court must decide whether a plaintiff, in an action against a landowner for criminal acts of third persons on the landowner’s property, may establish foreseeability other than by evidence of prior similar incidents on those premises. I. Plaintiff, Mervyn Isaacs, is an anesthesiologist affiliated with defendant, Huntington Memorial Hospital, a private hospital locate...
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Opinion In this medical malpractice action, both parties appeal from a judgment awarding plaintiff about $1 million in damages. Defendant claims that the trial court committed reversible error during the selection of the jury, in instructions on liability as well as damages, and in failing to order that the bulk of plaintiff’s award be paid periodically rather than in a lump sum. Plaintiff defend...
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*203Opinion Does a county violate Welfare and Institutions Code section 17000 et seq. or the California Constitution when it requires its residents who are single, employable and eligible for general assistance benefits to live in a county facility in lieu of cash benefits? I. Petitioners (plaintiffs) are 20 single, employable residents of the County of Sacramento (County) who are eligible for ge...
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I respectfully dissent. The majority has failed to conform to the fundamental principles applicable to appellate review of a trial court decision to grant or deny relief pursuant to section 473 of the Code of Civil Procedure. (All further references are to this code.) I cannot agree that the trial court abused its discretion in denying plaintiffs’ motion and that it erred as a matter of law. When ...
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OPINION Northern Lights Inn, Co. (Northern Lights) appeals the assessment against it of delinquent employment security contributions initially incurred by Cox Enterprises, Inc. (Cox). The Employment Securities *724 Division of the Alaska Department of Labor (the ESD) contends that Northern Lights is personally liable for Cox’s unpaid contributions under AS 23.20.260(c) as a s...
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OPINION Defendant John L. Graybill was convicted of 20 fish and game violations stemming from three separate episodes of illegal hunting activity during a hunting trip in the Illiamna area near the Koktuli River. Graybill has an extensive history of fish and game violations. He was on probation for a fish and game offense and his hunting license was revoked at the time of the Illiamna hunting t...
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The state petitions us to review a decision of the court of appeals ordering the State Department of Corrections (DOC) to release Jose Antonio Valenzuela (respondent) from custody. The case arose from the trial court’s denial of Valenzuela’s petition for post-conviction relief under Rule 32, Ariz.R.Crim.P., 17 A.R.S. Valenzuela petitioned the court of appeals for review pursuant to Rule 32.9(c)...
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Quincy Tramble (defendant) was convicted of theft in violation of A.R.S. § 13-1802. His crime was classified as a class 6 felony rather than a class 1 misdemeanor because the theft was “from the person of another.” Id., subsection C. Defendant was alleged to have reached through the passenger window of a car which was stopped in traffic and grabbed a purse lying on the seat next to the woman dr...
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We granted defendant's petition for review of a memorandum decision of the Court of Appeals, Division One, to answer only one question: whether it is error in a criminal case to fail to instruct the jury on reasonable doubt following closing arguments, when the jury has been previously instructed prior to the taking of evidence. Defendant was charged with burglary and theft with one prior convi...
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The appellant, Harry Eugene Temen, appeals a district court order discharging a writ of habeas corpus. We affirm. The appellant was arrested in El Paso County, Colorado in 1983 and held for extradition to the state of Texas. He filed for a writ of habeas corpus in the El Paso County District Court. Prior to the habeas corpus hearing, appellant filed discovery motions pursuant to Crim.P. 16 request...
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The litigation at issue here concerns the construction of the Eisenhower Tunnel on Interstate Highway 1-70 at the Continental Divide. Plaintiff, Alfred Brown Company (ABCO), appeals on three grounds from judgments entered in its contract action against defendants: Colorado Department of Highways (CDH); Tippets-Abbett-McCarthy-Stratton; and A1 Johnson Construction Company, Gibbons Reed Company, ...
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Defendant, Roger Allen Cullen, appeals his convictions by jury of two counts of first degree murder, two counts of second degree kidnapping, and conspiracy. The trial court sentenced defendant to two consecutive life terms for the murder convictions, two concurrent four year terms for the kidnapping convictions, and a concurrent term of twelve years for conspiracy. We affirm. I Defendant cont...
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The dispositive issue in this case is whether an order may properly be entered under C.R.C.P. 54(b) finalizing a judgment of dismissal of a third-party complaint based on a claim of contribution under § 13-50.5-101, et seq., C.R.S. (1983 Cum. Supp.) prior to resolution of the issues in the primary action. We hold that the 54(b) order entered by the trial court was improper as a matter of law. Thu...
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In this suit for a final accounting and dissolution of partnership, plaintiff, Mohammad A. Rasheed, appeals from the judgment entered following trial to the court contending that the trial court erred (1) in valuing the partnership inventory at “book value” rather than fair market value; (2) in failing to award prejudgment interest; (3) in admitting additional evidence after the filing of the m...
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Richard Lewis Girtman was convicted by a jury of sexual assault on a child in violation of § 18-3-405(1), C.R.S. (1978 Repl. Vol. 8). This appeal followed. We affirm. I. At trial, pursuant to § 16-10-301, C.R.S. (1978 Repl.Vol. 8), the prosecution was permitted to introduce evidence concerning similar transactions. Before the evidence was received, the court gave a limiting instruction as req...
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Plaintiffs, Task Enterprises, Inc., and Christopher Kachemov, appeal the judgment entered against them and in favor of defendant Colonial Bank of Rockford (Bank) on the parties’ respective claims for damages arising out of the Bank’s repossession of an automobile. Plaintiffs contend that the trial court erred in refusing to award the expenses incurred to obtain return of the vehicle after they ha...
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In this workmen’s compensation case, claimant, Johnnie C. Irwin, seeks review of a final order of the Industrial Commission denying and dismissing her claim for benefits for injuries sustained during an unexplained fall while on the job. We affirm. *765The pertinent facts were stipulated by the parties. On October 22, 1980, claimant began working as a security guard trainee for Stanley Smith Secur...
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Defendants (lessees) appeal and plaintiffs (lessors) cross-appeal portions of the judgments and orders entered by the trial court in 1982 and 1983 following remand from this court in Graefe & Graefe, Inc. v. Beaver Mesa Exploration Co., 635 P.2d 900 (Colo.App.1981). We affirm in part and reverse in part. The facts concerning this consolidated case are contained, for the most par...
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Plaintiff, Kevin Smith, commenced this action against defendants, the City and County of Denver and its Board of Water Commissioners (the Board), alleging that he sustained injuries as a result of the Board’s negligence. Trial was to a jury which returned a verdict for Smith. The trial court thereafter granted the Board’s motion for judgment notwithstanding the verdict pursuant to C.R.C.P. 50(b). ...
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The principal issue in this dissolution of marriage action is the propriety of the trial court’s order giving to the wife a condominium which was the separate property of the husband, or alternatively ordering that all property be sold, including that separate property, and the proceeds be divided. We hold that this property division order is in error and therefore reverse the judgment. At the ...
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In this action commenced pursuant to § 14-10-123, C.R.S., of the Uniform Dissolution of Marriage Act, petitioner, as alleged father, sought custody of a child born to respondent. In response to the verified petition, respondent moved for child support, payment of medical expenses associated with her pregnancy and birth of the child, and attorney fees. Petitioner was ordered to pay $112 per month ...
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After pleading guilty to a vehicular homicide charge, the defendant, John David Brown, was denied probation and was sentenced to a term of three years at Empathy House, a community corrections facility. He was also ordered to participate in a monitored Antabuse program for so long as the probation department and Empathy House personnel deemed it appropriate. After being in the program for some 4 ...
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Husband appeals the permanent orders concerning division of property in this dissolution of marriage proceeding. We reverse. This was a marriage of nine years duration. There were no children, and the wife has a Vz interest in a growing business that has been awarded to her in the property division. Among other findings regarding the total division of marital assets, the trial court found hus...
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695 P.2d 781 (1984) Michael J. BARTLEY, Plaintiff-Appellant, v. David Lee FLOYD, and Skip's Liquors, Inc., Defendants-Appellees. No. 83CA0265. Colorado Court of Appeals, Div. I. November 29, 1984. Rehearing Denied December 27, 1984. Certiorari Granted April 15, 1985. *782 Horn, Anderson & Johnson, Gregory L. Johnson, Colorado Springs, for plaintiff-appellant. Bailey & Robinson, R. Dennis ...
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Plaintiff, Peter Ellis, was formerly employed as a police officer by defendant, City of Arvada. In his complaint, he sought to recover a “meritorious pay award” which he alleged he had earned because of a favorable periodic evaluation of his performance, and to which he therefore claimed entitlement under the provisions of a city ordinance. Defendant moved for summary judgment, arguing that paymen...
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695 P.2d 785 (1984) C.K.A. and J.H.A., Plaintiffs-Appellees, v. M.S., Defendant-Appellant. No. 82CA1273. Colorado Court of Appeals, Div. III. December 6, 1984. Rehearing Denied January 10, 1985. Certiorari Pending as of May 20, 1985. *786 Max P. Zall, City Atty., Bruce E. Turner, Asst. City Atty., Denver, for plaintiffs-appellees. Tinkler & Carwin, Donald R. Carwin, Denver, for defendant-appe...
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M.S. appeals from an adjudication that he is the father of J.H.A. (the child) and from an order requiring him to pay child support to C.K.A. (mother). We affirm. At trial in early 1981 before a commissioner of the juvenile court, the following evidence was presented. The child was born June 7, 1979. Mother testified that she had no sexual partners other than M.S. from August through October 1978. ...
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695 P.2d 788 (1984) Laura SMITH, Wanda Smith and Jeanette Smith, Plaintiffs-Appellants, v. HOME LIGHT AND POWER COMPANY, a Colorado corporation, Defendant-Appellee. No. 81CA0527. Colorado Court of Appeals, Div. II. December 13, 1984. Rehearing Denied January 10, 1985. Certiorari Granted April 15, 1985. *789 Gerash & Robinson, P.C., Scott H. Robinson, Walter L. Gerash, Denver, Robert C. Burrou...
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In this nuisance action between the owners of two adjoining properties, defendants, Calvin, Abigail, Frank, Mark J. Ricken Smith, and Nancy Eaton Rutan (the Smiths), appeal the trial court’s judgment awarding plaintiffs, Ronald and Bonnie Allison and John and Barbara Dozzo (the Allisons), a permanent injunction and $5,000 in damages. We affirm. The Allisons are among several family members...
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Defendant was convicted of a felony drug offense and was sentenced to imprisonment after the trial court found him ineligible for parole because of two prior felony convictions. See § 16-11-201(2), C.R.S. (1984 Cum.Supp.). Defendant appeals, claiming that a 1962 felony conviction entered upon a guilty plea was invalid because he had not been afforded legal counsel. We vacate the sentence and rema...
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In this wrongful death action, plaintiffs appeal the summary judgment in favor of Commerce City and certain of its police officers. The trial court held that the police officers owed no duty to plaintiffs, that the police officers’ actions were discretionary, and that the plaintiffs could not maintain an action for negligence. We reverse. This action arose as the result of an automobile acciden...
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Defendants, the State Board of Assessment Appeals and the State Property Tax Administrator, appeal from an order of the district court directing that plaintiffs be granted an abatement and refund of certain property taxes. We affirm. In 1980 the assessor of El Paso County increased the assessed valuation of 48 condominium units in a four-building complex located in Colorado Springs, Colorado. T...
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Defendant, Ron J. Erickson, was charged with theft, § 18-4-401, C.R.S. (1978 Repl. Vol. 8), based upon an alleged violation of the Contractor Trust Fund Statute, § 38-22-127, C.R.S. (1982 Repl.Vol. 16A). He appeals his jury conviction. We reverse and remand for a new trial. The pertinent facts are essentially undisputed. The owner of property contracted with Erickson’s construction company to c...
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Defendant, Gertrude Cecille Reed, appeals a judgment of conviction based on a jury verdict finding her guilty of second degree murder and a count seeking enhanced punishment for commission of a crime of violence. We affirm. The evidence showed that Mrs. Reed and her husband, Reginald Reed, had had a series of violent domestic disputes. Mr. Reed had decided to obtain a divorce. On the evening ...
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This is an appeal by Kenneth Wayne Volker from an order granting partial relief under the Uniform Post-Conviction Procedure Act, Chapter 49, Title 19, Idaho Code. Following pleas of guilty, Volker had been convicted of robbery and of battery with the intent to commit robbery. Approximately one year after sentencing, Volker petitioned the district court for post-conviction relief, raising three is...
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236 Kan. 697 (1985) 695 P.2d 812 JAMES P. SELLARS and KELLY SELLARS, Appellants, v. STAUFFER COMMUNICATIONS, INC. Appellee. No. 55,387 Supreme Court of Kansas. Opinion filed March 2, 1985. Timothy A. Short, of Spigarelli, McLane & Short, of Pittsburg, argued the cause, and Fred Spigarelli, of the same firm, was with him on the brief for appellant. Michael W. Merriam, of Colmery, McClure, Leto...
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delivered the Opinion of the Court. This is an appeal from an order of the District Court of the Nineteenth Judicial District, Lincoln County, Montana, the Honorable Robert M. Holter, presiding. Petitioner appeals both the denial of a motion to continue and the award of custody of the three minor children to respondent. Appellant (petitioner below) was not present at the non-jury trial held o...
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delivered the Opinion of the Court. AAR Construction, Inc., appeals from an order of the District Court, Tenth Judicial District, Fergus County, dated August 31, 1984, allowing C.E. Rookhuizen a set-off of $5,823.83 against a judgment theretofore granted by the District Court in favor of AAR Construction, Inc. and against C.E. Rookhuizen. AAR also appeals from the order of the District Court ...
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delivered the Opinion of the Court. Kathleen Aasheim, plaintiff in a medical malpractice action, appeals from a judgment entered by the District Court of the Eighteenth Judicial District in favor of defendant, Dr. Frank W. Humberger. Plaintiff brought this action to recover damages for alleged negligent medical treatment administered to her by defendant. A jury trial which began January 30, 1...
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delivered the Opinion of the Court. This is the second time this case has been before us on appeal. In November, 1980, defendant Boyer was convicted in a jury trial in the Fourth Judicial District, Lake County, of two counts of sexual intercourse without consent and one count of aggravated kidnapping. He was sentenced to 30 years on each count of sexual intercourse without consent and 10 years ...
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OPINION Plaintiffs originally appealed to this court from an order granting summary judgment in favor of defendant bank. Two issues were raised: (1) whether the trial court erred in granting summary judgment in favor of bank; and (2) whether the trial court erred in granting summary judgment rather than partial summary judgment. Because this court reversed on the first issue, we did not reach the...
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OPINION Defendant appeals his conviction of escape from jail, aggravated battery on a peace officer, aggravated burglary, larceny over $100, and unlawful taking of a motor vehicle. The sole issue raised in the initial docketing statement was whether the trial court erred in denying defendant’s motion, made on the day of trial, for a continuance and for substitution of counsel. See State v...
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OPINION Plaintiff Yolanda Yvonne Blake appeals from a Supplemental Decree of Dissolution of Marriage entered August 11, 1983 disposing of the issues of child custody, child support, alimony, division and distribution of the community property and debts, and attorney fees. A final decree dissolving the marriage had previously been entered on April 25, 1983. In her appeal wife claims trial cour...
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On November 19,1981, Claimant Edward E. Derryberry filed a workers’ compensation claim for permanent total disability benefits. Claimant alleged he contracted pneumonia as a consequence of dipping water out of underground water meter manholes during the course and scope of his employment as a meter reader with the City of McAlester. Claimant’s employment involved and required the reading of water ...
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OPINION On appeal from his conviction of Manslaughter in the First Degree in the District Court of Tulsa County, Case No. CRF-81-3853, and sentence of seventy-five (75) years imprisonment, appellant, Dionicio Aguirre Villanueva, raises four assignments of error. We deem it unnecessary to set forth the facts of this ease at length; suffice it to say that appellant does not deny his involvement i...
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OPINION Jackie Rhodes and Edward J. Large were convicted of Burglary in the Second Degree After Former Convication of a Felony, and were sentenced to ten (10) years in prison. On appeal, they present six assignments of error. We affirm. The first assignment of error deals with alleged improper cross examination of a defense witness. It was not erroneous to permit the prosecutor to question th...
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OPINION Lonnell Eugene Smith was tried before a jury and convicted of Robbery with Firearms, After Former Conviction of a Felony, in violation of 21 O.S.1981, § 801. The case was heard in the District Court of Tulsa County, the Honorable Margaret *866 Lamm, District Judge, presiding, and the defendant was represented by counsel. The jury set punishment at ten (10) years imprisonment. From the...
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MEMORANDUM OPINION The appellant, Timothy Carl Young, was convicted of Shooting with Intent to Kill, After Former Conviction of Two or More Felonies, in Tulsa County District Court, Case No. CRF-82-0959, was sentenced to twenty (20) years’ imprisonment and as his sole assignment of error, complains of numerous instances of alleged prosecutorial misconduct in closing argument. Defendant argues...
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OPINION The appellant, Pamela Dee Hutcheson, was charged with, tried for, and convicted of Second Degree Rape by Instrumentation, pursuant to 21 O.S.1981, § 1111.1, in the Tulsa County District Court, Case No. CRF-82-3121. Punishment of fifteen (15) years imprisonment was imposed. We affirm the judgment and sentence of the District Court. On August 23, 1982, twenty-one year-old M.G. was forced by ...
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OPINION The appellant, Michael Lee Collums, was charged in the District Court of Washington County, Case No. CRF-81-195, with Murder in the First Degree, in violation of 21 O.S.1981, § 701.7 B, and Arson in the First Degree, in violation of 21 O.S.1981, § 1401. He was convicted of the former offense but acquitted of the latter. The jury returned a sentence of life imprisonment. 1 We affirm th...
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OPINION Alex Ralph Cardenas was convicted of Robbery with Firearms, After Two Former Felony Convictions, and was sentenced to twenty (20) years in prison. On appeal, we modify and affirm. As his first assignment of error, appellant contends that the trial court erred in failing, on his own motion, to instruct the jury on the defense of duress. This contention is without merit. The only eviden...
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695 P.2d 879 (1985) Leon HENDERSON, Appellant, v. The STATE of Oklahoma, Appellee. No. F-82-716. Court of Criminal Appeals of Oklahoma. February 12, 1985. Dennis F. Seacat, Romine & Seacat, Inc., Okmulgee, for appellant. Michael C. Turpen, Atty. Gen., Robert W. Cole, Asst. Atty. Gen., Oklahoma City, for appellee. *881 OPINION BRETT, Judge: Leon William Henderson was charged in the District ...
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OPINION Don McManus was convicted of Driving While Under the Influence of Intoxicating Liquor, Case No. CRM-82-209, and sentenced to forty-five (45) days imprisonment in the Harper County Jail, and fined three hundred ($300) dollars, from the District Court of Harper County, Oklahoma, and appeals. On the evening of September 17, 1981, Oklahoma Highway Patrol Troopers, Kevin Millender and Eugene Ru...
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In its order of January 31, 1984, the Workers’ Compensation Court en banc ruled that Paul W. Lee (Worker) did not sustain an injury arising out of and in the *888course of his employment for D.P. Bonham Transfer, Inc. (Employer). The en banc order reversed trial court’s ruling, which had found Worker’s injury did satisfy 85 O.S.1981 § 11. Based on our review of the evidence and applicable law, we ...
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OPINION In this workers’ compensation case, worker appeals the court en banc’s reduction of the lower court’s award of permanent partial disability compensation from 400 weeks to 260 weeks because worker had previously received 240 weeks of temporary total compensation. The sole issue raised by this appeal pertains to the continued existence of the 500 week limitation on combined awards of tempor...
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Appeal from charging order determining priority of claims against general partners of a limited partnership. Appellants Major Real Estate and Investment Corporation, Harold W. Burlingame, and Barbara Jean Burlingame (collectively, “Major group”) and Appellee Republic Financial Corporation (“Republic”) are creditors of both Webster Properties, Inc. (“Webster”) and R.O. Wheeler (“Wheeler”). Webster...
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Plaintiff was injured when defendant’s truck backed up and struck her, and she sued for damages. A jury found that defendant was not negligent. On appeal, plaintiff claimed that the trial court made erroneous rulings concerning the truck’s lack of an alarm device to signal when the truck was to be backed. The Court of Appeals affirmed without opinion. We allowed review to consider the proper trea...
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The Oregon State Bar filed a complaint against George O. Tamblyn accusing him of unethical conduct. The Bar alleged that Tamblyn, in open court, instructed his client not to comply with an order granting a preliminary injunction and thereby violated DR 7-106(A) and ORS 9.527(3). Tamblyn contends that the order granting the preliminary injunction was void because it did not provide for security ...
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The factual and legal background of this complicated litigation was succinctly set forth by Chief Judge Joseph in the Court of Appeals opinion as follows: “In January, 1977, plaintiff Klinicki conceived the idea of engaging in the air transportation business in Berlin, West Germany. He discussed the idea with his friend, defendant Lundgren. At that time, both men were furloughed Pan Americ...
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Plaintiffs-taxpayers failed to appeal to defendant Department of Revenue (Department) from a determination and assessment of additional tax within 90 days from receipt of notice. ORS 305.280(1). Plaintiffs then filed this proceeding in the Oregon Tax Court seeking redetermination of their tax liability. The tax court granted Department’s motion to dismiss for failure to exhaust administrative r...
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The petition for review is allowed, limited to the issue of petitioner’s sentence. On that issue, the decision of the Court of Appeals is reversed, and the sentence is modified to vacate the second sentence imposed under ORS 161.610. State v. Hardesty, 298 Or 616, 695 P2d 569 (1985)....
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In this criminal case, defendant appeals his conviction for assault in the fourth degree. On the merits, his conviction is affirmed. However, the sentence is vacated and the case is remanded for resentencing to allow the trial court to make an appropriate allocation of the victim’s losses between an automobile collision and the assault, and to consider the factors mandated by ORS 137.106(2). Convi...
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In this driving under the influence of intoxicants case, the state appeals a trial court order suppressing evidence of defendant’s refusal to take a breath test. The arresting officer made the request that defendant take the test while both men were at the scene of the arrest, several miles from the stationhouse. The trial court stated, in granting defendant’s motion to suppress: “I suppose what I...
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Claimant petitions for review of a Board order that denied compensation for a heart condition. The question is whether the referee and the Board properly applied ORS 656.802(2), commonly referred to as the “fireman’s presumption.” The referee found that SAIF had rebutted the presumption by proving that claimant’s condition was not work related, and the Board affirmed. On de novo review, we affirm....
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Plaintiff, a political committee, brought this action under ORS 260.532 to recover general and punitive damages for false statements made in connection with a 1980 ballot measure to ban the trapping of wildlife. Before trial, plaintiffs complaint against five of the defendants was dismissed with prejudice. The action went to trial on the third amended complaint with Roger E. Martin, personally an...
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This is a civil action in which plaintiffs sought to quiet title and to establish a boundary. The action was filed primarily because defendants Williams asserted that they held a perpetual easement over plaintiffs’ property.1 Plaintiffs appeal from a trial court judgment dismissing their claims and quieting title in defendants Williams. Third-party defendant Piccinati, owner of property abutting p...
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Defendant appeals 1 his conviction for theft in the first degree, ORS 164.055, on the ground that the trial court erred in admitting statements he made to the police after he asked for an attorney. 2 We reverse and remand for a new trial. La Grande police officers picked up defendant at his mother’s house on January 14,1982, and took him to the city police station for questioning concerning...
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695 P.2d 937 (1985) 72 Or.App. 235 MID-COUNTY FUTURE ALTERNATIVES COMMITTEE, an Oregon Corporation, Bonnie McKnight, Dorothy Smith, John T. Baker, Jane E. Baker, Thomas Dennehy and Robert Luce, Petitioners, v. PORTLAND METROPOLITAN AREA LOCAL GOVERNMENT BOUNDARY COMMISSION, Respondent, City of Portland and City of Gresham, Intervenors-Respondents. 1950; CA A30904. Court of Appeals of Oregon. Argu...
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On August 18, 1983, the City of Fairview filed a petition and related documents with the respondent Boundary Commission as part of a process to consolidate the city with unincorporated territory in Multnomah County and to form the new city of Columbia Ridge. ORS 199.460-.480. On December 8, fewer than 120 days after the filing of the documents, the chairperson of the commission signed a final orde...
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Petitioners seek review of the respondent boundary commission’s order disapproving and terminating ORS chapter 221 incorporation proceedings on petitioners’ proposal to incorporate the city of Aloha in Washington County. ORS 199.480(2). Petitioners did not tender the required filing fee to the commission until one month after the petition was filed. The commission issued its decision within 120 d...
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Claimant appeals from a denial of unemployment compensation benefits, contending that the referee and the Employment Appeals Board erred in finding that she left work voluntarily without good cause. ORS 657.176(2). We reverse and remand for reconsideration. EAB adopted the referee’s opinion, including the following findings of fact. Claimant worked for employer as a waitress and pantry worker. ...
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Plaintiff brought an action for conversion or replevin and defendant 1 counterclaimed for abuse of process. The trial court granted defendant’s motion for summary judgment on plaintiffs claim and, after trial, granted judgment for defendant on her counterclaim. Plaintiff appeals, contending that there were material issues of fact respecting her claim and that the court therefore erred in granti...
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In this personal injury action, defendant1 appeals from a judgment entered on a verdict for plaintiff. We affirm. Plaintiff injured his right hand while repairing defendant’s combine. The injury occurred when defendant engaged the combine’s separator (the part which threshes the wheat), causing plaintiffs hand to be rotated through the pulley mechanism he was repairing. Plaintiffs complaint, amend...
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Defendant appeals his conviction for burglary in the second degree. ORS 164.215. After the trial court had denied his motion to suppress evidence taken as a result of his being stopped by police officers, he waived his right to a jury trial and was tried by the court. His conviction stemmed from a February 23, 1983, break-in at a gas station in Redmond, in which 140 to 160 packages of cigarettes ...
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The Oregon Public Employes Union (OPEU) appeals an order of the Employment Relations Board concerning which of two bargaining units should be allowed to represent 53 right-of-way agents and agent trainees in the Department of Transportation. The right-of-way employes presently represented by OPEU wish to be represented by the Association of Engineering Employes (AEE). ERB granted AEE’s petition f...
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Claimant petitions for review of an order of the Workers’ Compensation Board denying him permanent total disability and awarding him 85 percent scheduled disability for the loss of use of his left leg. We review de novo and hold that claimant is permanently and totally disabled. Claimant is 62 years old and has worked for 33 years, since his discharge from military service, as a carpenter.' He suf...
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Claimant was terminated from employment for allegedly wilfully failing to report for work as scheduled without notifying his employer. He appealed an EAB order denying him unemployment compensation, contending that his conduct was the result of the illness of alcoholism and, therefore, not misconduct. We originally affirmed without opinion. 70 Or App 356, 688 P2d 854 (1984). Thereafter, claimant f...
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Claimant seeks review of an order of the Workers’ Compensation Board, which reversed the referee and held that claimant was not permanently and totally disabled. We reverse. Several basic rules and principles are involved in the resolution of this kind of case. First, and foremost, in order to meet his burden of proving that he is permanently and totally disabled, a claimant must establish that he...
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Claimant petitions for review of an Employment Appeals Board order which disqualified her from receiving unemployment compensation. Because EAB’s order fails to address claimant’s principal contention, we reverse and remand for reconsideration. At the time of her termination, claimant had worked for employer for slightly more than seven years. She had a fairly extensive record of absenteeism, incl...
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Defendant appeals his conviction for waste of a game mammal, a class A misdemeanor. ORS 498.042(2); ORS 496.992(1). During an investigation, Officer Emerson of the Oregon Department of Fish and Wildlife interrogated defendant twice. Emerson made notes of defendant’s statements to him. Subsequently he prepared a report from his notes for the district attorney.1 Before trial, the district attorney g...
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Plaintiffs appeal a judgment that denied their petition to sell defendant Gibsons’ real property (the property) on execution and that ordered the property discharged from the lien of plaintiffs’ judgment against defendants Grenfell. Defendants Mrs. Grenfell and the Gibsons cross-appeal the denial of attorney fees. On the appeal, we dismiss as to Charles Gibson and otherwise reverse and remand; ...
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Claimant seeks review of a Workers’ Compensation Board order denying him compensation for his low back condition as either an aggravation or a new injury. We reverse and remand for reinstatement of respondent SAIF Corporation’s acceptance of the claim. The dispositive issue is whether SAIF is estopped from denying acceptance of the claim under Bauman v. SAIF, 295 Or 788, 670 P2d 1027 (1983).1 We h...
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In these paternity cases, Adult and Family Services appeals the allowance of attorney fees to respondents. We reverse. Parkhurst v. Faessler, 62 Or App 539, 661 P2d 571 (1983); Diamond Claims & Inves., Inc. v. Grensky, 68 Or App 446, 681 P2d 802 (1984). The dissent acknowledges that respondents failed to comply with the specific requirement of ORCP 68C(2) but argues that we should disregard that f...
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Claimant seeks review of an order of the Workers’ Compensation Board which affirmed the referee’s denial of medical benefits under ORS 656.245. The only issue is whether claimant’s neck condition is causally related to an earlier compensable accident. We review de novo and reverse. Claimant suffered a compensable injury on August 27,1980, when the hay truck he was driving for the C-2 Cattle Compan...
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Defendant was indicted for attempted murder and assault in the first degree for shooting her husband. She was convicted by a jury of assault in the second degree and sentenced to seven years imprisonment with a minimum term of five years pursuant to ORS 161.610. On appeal, she contends that the court erred in (1) striking the testimony of a defense witness, (2) excluding the testimony of a defense...
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Plaintiff in this post-conviction proceeding appeals the trial court’s judgment denying him relief from his conviction for carrying a blackjack. ORS 166.510. The state confesses that ORS 166.510 is unconstitutional insofar as it prohibits the possession of a blackjack and that the trial court erred in holding otherwise. We agree. State v. Delgado, 298 Or 395, 692 P2d 610 (1984). The trial court...
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Husband appeals from a default judgment dissolving the parties’ marriage, contending, inter alia, that entry of the judgment was not in compliance with ORCP 69B(2) and that certain provisions of an order of the trial court providing for visitation rights of the paternal grandparents should be set aside. We reverse and remand. The parties were married in 1972. They have one child, a son, who was bo...
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Petitioners Akada, Wong, Chin and Eng, property owners near a proposed condominium project, filed a writ of certiorari seeking review of a Seattle City Council decision affirming issuance of a use permit. Petitioners alleged that the City's actions failed to comply with procedures of the State Environmental Policy Act of 1971 (SEPA), RCW 43.21C, the SEPA guidelines, and city ordinances implemen...
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— Pioneer National Title Insurance Company appeals the summary judgment dismissal of its adverse possession claim or in the alternative recovery for costs of improvements upon real estate. We affirm. This case concerns a dispute over property located at East 1912 and 1914 Sharp Avenue (Lot 3) in Spokane. In 1889 the property in question was conveyed to the State of Washington as part of it...
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— The Washington State Human Rights Commission appeals from a judgment of the Superior Court for Clark County that reversed a hearing tribunal's award to a black student of $1,500 for embarrassment and humiliation suffered as a result of a teacher's racially offensive classroom remark. Evergreen School District No. 114 cross-appeals the court's affirmance of the tribunal's conclusion that Everg...
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— Dennis Zander appeals the trial court's order of modification extending child support obligations beyond the age of 18. The issue is whether preexisting facts known by the parties at the time of the dissolution proceedings but unknown to the court amount to a sufficient change of circumstances to justify a modification of child support. We answer in the negative and reverse. Judith and Dennis...
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— Gregory Mott appeals a superior court judgment which affirmed in part and reversed in part a hearing officer's determination that Endicott School District had sufficient cause to dismiss him from his teaching position. We reverse the Superior Court and a portion of *793 the hearing officer's decision, and order Mr. Mott reinstated. Mr. Mott graduated cum laude from Washington State Universi...
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— On August 6, 1982, two witnesses saw a man shoot a woman. No body was ever found, but authorities had reason to believe the victim was Pamela Sellers. Nelson Lee Sellers, her husband, was convicted of second degree murder. He raises seven claims of error on this appeal. We affirm. The shooting took place between 9:30 and 10 a.m. on the street in front of Sellers' mother's house. The witnesses...
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Appellant, Abdula Amin, was convicted by a Laramie County jury of aiding and abetting aggravated robbery. The case against Abdula Amin was consolidated for trial with the companion case of State v. Valerie Yvonne Amin, appellant’s wife. According to appellant the issues are: I.“Whether appellant’s consent to the search of his car cannot be said to have been voluntary where he was not informed that...
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This appeal is from a judgment settling claims arising out of an option for the transfer of federal grazing rights. The judgment awarded specific performance and damages which included actual damages, attorneys’ fees, costs and exemplary damages. The judgment also provided for subordination of a lien of the Farmer’s Home Administration. The defendants, Malmbergs, and the United States, interve-nor...
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Subcontractor Rick D. Hogan, d/b/a Cheyenne Sash & Door, brought suit against Reiman Construction Company and Robert W. Postín, the contractor and architect respectively on the restoration of the historic Tivoli Building in Cheyenne. Hogan’s complaint against Postín is the subject of this appeal. Hogan claimed that Postín made a measurement error in the architectural drawings of a window layout, a...
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dissenting. The majority opinion correctly accepts the fact that the statute of limitations, without more, would bar appellant’s claim. The legislature has so provided: “(a) No order or award for compensation involving an injury which is the result of a single brief occurrence rather than occurring over a substantial period of time, shall be made unless in addition to the reports of the injury, an...
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Appellant was tried by a jury and convicted of second degree sexual assault, § 6-4-303(a)(v) [§ 6-2-303(a)(v) ], W.S. 1977 1 , and of incest, § 6-5-102 [§ 6-4-402], W.S.1977 2 , stemming from actions involving his seven-year-old adopted daughter. Appellant was sentenced to two to seven years in the Wyoming State Penitentiary on each offense, with the sentences to run concurrently. He ap...
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Opinion When a summons and complaint are served by mail on a person outside this state within three years of the commencement of an *246 action, must a return receipt be obtained and filed within those three years to satisfy Code of Civil Procedure section 581a? I. This case involves three separate civil actions arising from injuries allegedly caused by in útero exp...
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Opinion This is a proceeding to review the recommendation of the State Bar of California that petitioner, Douglas W. Trousil, be suspended from the practice of law for two years, that execution of the order of suspension be stayed, and that petitioner be placed on probation for two years with conditions including a six-month actual suspension. As discussed below, we conclude that the revi...
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OPINION Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ. Joe Van Gulik appealed from the superi- or court’s partial summary judgments in this matter of a mismanaged lottery. As explained below, we remand this case with the following direction: The superior court shall order Van Gulik to elect either to submit to a final drawing between his ticket and Cooper-McGowan’s ticket or ...
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OPINION This is an appeal from a decision of the Anchorage Municipal Zoning Board denying Rodney and Emily Spendlove (hereinafter “Spendlove”) the use of twenty-two and one-half acres for mineral resource extraction. Following a lengthy trial de novo granted at Spendlove’s request, the court entered judgment against Spendlove, enjoining mineral or natural resource extraction and dismissing Spendlo...
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I. In 1982 Emmert Curtis obtained a judgment of $116,514 against Kenneth Keltner. Stanley Blackketter and Fumiko Keltner, 1 appellants, claim to own property that was levied upon by Curtis while attempting to collect this judgment. Blackketter filed third-party claims to an excavator and two generators and Fumiko Keltner filed a third-party claim to a Fruehauf tanker. Curtis moved for a deter...
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OPINION This appeal arises out of a quiet title action which was instituted by Add-Ventures in superior court regarding approximately 140 mining claims near Petersville, Alaska. In his answer appellant William F. Hall asserted in part, by way of counterclaim, that Add-Ventures had agreed to sell him all of the mining properties involved in the quiet title action. Asserting that he was the...
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*1091 OPINION This case requires us to determine which of two conflicting statutes governs the transactions at issue. One statute prohibits the Alaska Alcoholic Beverage Control Board (hereafter ABC or Board) from approving liquor license transfer applications when a creditor of the transferor has not received payment or security for payment of a debt. This statute was repealed a...
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These two cases raise the same issues concerning the constitutionality of town codes which allow their councils to remove town magistrates from office at will. Because these issues affect many cities and towns in this state which have similar town code provisions, the appeals were transferred to this court pursuant to Rule 19, Rules of Civil Appellate Procedure. In No. 17332, appellee John...
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Petitioner brings this special action challenging the ruling of the respondent trial judge granting, over petitioner’s objections, full faith and credit to a New Mexico judgment establishing petitioner’s paternity of a certain child. We accepted jurisdiction under Ariz. Const. Art. 6, § 5 and Arizona Rules of Special Actions 4, 17A A.R.S. because petitioner has no equally plain, speedy, and adequ...
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On July 8, 1976, appellant James Stotts, aka James Aye, pled guilty to the old-code crime of armed aggravated assault with one prior. See A.R.S. § 13-245(C) (repealed). This conviction arose from an incident in which appellant, armed with a knife, attacked a fifteen year old girl in an apparent attempted sexual assault. The trial court suspended imposition of sentence and placed appellant ...
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144 Ariz. 89 (1985) 695 P.2d 1127 In re the MARRIAGE OF John T. GRAY, Petitioner-Appellee, Enthus Ann Gray, Respondent-Appellant. No. 17829-PR. Supreme Court of Arizona, En Banc. February 20, 1985. *90 Lowell A. Jensen, Clarkdale, for petitioner-appellee. Dale L. Williams, Camp Verde, for respondent-appellant. HAYS, Justice. Enthus Ann Chance (formerly Enthus Ann Gray) petitions this court to rev...
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A complaint against the respondent, Ted Bowen, was lodged with the State Bar of Arizona. Thereafter, a formal complaint issued and a time for hearing before an administrative committee was set. Subsequently a hearing was held, lasting two and one-half days. The respondent appeared with counsel. A number of witnesses appeared and gave testimony; letters, checks and other documents were admitted in ...
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695 P.2d 1133 (1984) Scott Harris WHITE, Petitioner, v. DISTRICT COURT In and For the FOURTH JUDICIAL DISTRICT of the State of Colorado, the Honorable David D. Parrish, One of the Judges Thereof, Respondents. No. 84SA189. Supreme Court of Colorado, En Banc. November 13, 1984. *1134 Simons & Iuppa, Frank S. Simons, Jr., Colorado Springs, for petitioner. Robert L. Russell, Dist. Atty., Michael ...
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This matter is before us upon a Petition for Writ of Prohibition and Mandamus filed by Scott Harris White, petitioner, against the District Court in and for the Fourth Judicial District of Colorado and a judge thereof, respondents.1 The petition asserts that respondent district court violated petitioner’s constitutional rights and acted in excess of its jurisdiction in granting a motion by the pro...
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In these consolidated cases, Jake Broyles appeals from two separate judgments of the Water Judge of the District Courts in and for Water Division 2. Both judgments arose out of the same proceeding — Broyles’ 1979 application for a determination that several conditional underground water rights had become absolute by reason of completion of the appropriations, and for a quadrennial finding of re...
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The defendant, Jerry Deitchman, appeals his convictions of first-degree sexual assault, second-degree kidnapping, and attempted second-degree kidnapping. §§ 18-3-402; 18-3-302; and 18-2-101, 8 C.R.S. (1978). As the sole ground for reversal, defendant claims that the district court improperly admitted evidence seized from his residence and automobile pursuant to defective warrants. During a ten-day...
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Plaintiff Thomas Williamson, Jr. (Thomas) and defendant Alfredo Duran (Alfredo), students at Carmel Junior High School, were participants, with others, in a snowball fight on the school grounds. Thomas was hit by a snowball and was blinded in one eye. Thomas and his mother, Irma Williamson, instituted this action, claiming that Alfredo negligently threw the snowball that hit Thomas and that defend...
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Defendant, Jimmy Lee Waits, appeals the trial court’s denial of his Crim.P. 35(c) motion for post-conviction relief on the basis that his pleas of guilty to the charges of attempted first degree murder and second degree burglary were unconstitutionally obtained. We affirm. The two charges to which defendant pled guilty arose from two unrelated incidents: the 1977 burglary and theft of the home ...
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This litigation arose out of an alleged breach of a partnership agreement between the plaintiff, David Yoder and the principal defendant, Steven J. Hooper. Following trial to the court, judgment was entered in favor of plaintiff and against Hooper. Hooper appealed. We affirm. In the fall of 1976, Yoder and Hooper entered into a business venture for the manufacture, distribution, and sale of fro...
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In this action, judgment was entered in October 1981 cancelling oil and gas leases *1190 held by defendant, Byron Oil Industries, Inc. (lessee), on approximately 324 acres of land in Adams County owned by plaintiff, North York Land Associates (lessor). Lessee appeals. We affirm in part and reverse in part. Leases on 480 acres, including the 324 acres in issue here, were grante...
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Defendant, Theodore R. Vialpando, appeals from an adverse jury verdict finding him ineligible for release from commitment after having been found not guilty by reason of insanity. We affirm. Defendant sought to elicit testimony from a member of the disposition committee at the Colorado State Hospital concerning the nature of his proposed conditional release and its terms and conditions. The trial ...
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*386 OPINION OF THE COURT BY Plaintiff Janice Fumiko Amii (Wife) appeals a portion of the family court’s September 29, 1983 amendment of its March 3,1982 divorce decree. The relevant portion of the amendment terminated the right of Wife and the three minor children of the parties to exclusively occupy residence E-31, 4280 Salt Lake Boulevard, Honolulu, Hawaii, for ten years from ...
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695 P.2d 1201 (1984) 107 Idaho 1062 J.T. WOLFORD, dba Wolford Realty and C.B. Empey and Ilene B. Empey, husband and wife, Plaintiffs-Respondents, Cross-Appellants, v. Lloyd T. TANKERSLEY and Dora Gennette Tankersley, husband and wife, Defendants-Appellants, Cross-Respondents. No. 13764. Supreme Court of Idaho. May 22, 1984. On Rehearing February 5, 1985. *1202 Harold L. Ryan and Michael B. Sweet,...
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This is an appeal from the Industrial Commission, which found that the claimant’s unemployment was not the result of a discharge for employment-related misconduct. An unemployment insurance benefit claimant is ineligible for benefits if his unemployment was the result of a discharge for employment-related misconduct. See I.C. § 72-1366(e). The record supports the finding of the Commission that the...
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ORDER AND DECISION The Appellant, GEORGE V. HANSEN, having filed with the Court a NOTICE TO APPEAL PURSUANT TO 34-2308, IDA- [¶] CODE, on December 14, 1984, together with an APPELLANT’S BRIEF appealing from a decision entered by Jim Jones, Attorney General of the State of Idaho, on December 12, 1984, denying a request for general recount of all ballots cast in the 1984 election for the Second Cong...
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695 P.2d 1238 (1985) 107 Idaho 1099 Connie OTTESEN, on Behalf of her minor child, Quentin "Skip" EDWARDS, Petitioner-Appellant, v. BOARD OF COMMISSIONERS OF MADISON COUNTY, Idaho; Doyle Walker, Dell Klingler and Wayne Beck, Board Members; and Nellis H. Garner, Clerk of said Board, Respondents. No. 15234. Supreme Court of Idaho. January 7, 1985. Michael Howard Hinman, Idaho Legal Aid Services, Inc...
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The United States Ninth Circuit Court of Appeals has certified to us the following issue: Whether under Idaho law a mechanic’s lien filed under Title 45, Chapter 5 of the Idaho Code must include an acknowledgment, pursuant to I.C. § 55-805, in order for it to be properly recorded. We hold that it does not, and never has. Title 45, Chapter 5, Idaho Code, provides laborers and materialmen with the r...
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This is an attempted appeal from a partial summary judgment issued in favor of Homer Whittier, one of multiple defendants to a multiple count action brought by plaintiffs-appellants Karl and Retha Smith. We dismiss the appeal. Karl and Retha Smith had engaged in a farming-ranching operation at two locations within Idaho with the assistance of their two sons, David and Kent. That farming op...
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This is an appeal from a decision of the Industrial Commission which terminated unemployment compensation benefits to claimant Artis and disqualified Artis from. receipt of any unemployment benefits for an additional period of 52 weeks on the basis that he had wilfully misrepresented a material fact on a weekly certification form. We reverse. Artis had been employed as an accountant with Morrison-...
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concurring specially and dissenting in part. Although I have joined the opinion for the Court, I do so with some trepidation which is occasioned by the similarity this case bears to Johnson v. Amalgamated Sugar Co., (Idaho Sup.Ct. No. 14746, released January 1,1984), and pending for the past half year on a petition for rehearing. Both cases are concerned with a “heart attack (acute myocardial infa...
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International Equipment Service (IES) entered into a lease agreement with Pocatello Industrial Park Company (PIPCO) wherein IES leased an industrial building from PIPCO for one year. The lease provided that the lessor, PIPCO would maintain the roof and other structural components in good repair. The lease also provided that the lessee would obtain insurance and that, to the extent a loss was in...
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Catherine Field Rhodes appeals from the District Court’s affirmation of a Magistrate Court’s termination of the parent-child relationship between Ms. Rhodes and her child. After a six day hearing before the Honorable A. Richard Grant, Magistrate, the court rendered a memorandum opinion terminating the parent-child relationship. In the opinion, the magistrate summarized the relevant testimony of wi...
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ON DENIAL OF PETITION FOR WRIT OF PROHIBITION On February 14,1985, Idaho Power Company filed a petition for writ of prohibition, requesting this Court to prohibit the Idaho Public Utilities Commission from enforcing the terms of its Order No. 19442, in Case No. U-1006-237, entered February 8, 1985, which order required Idaho Power Company to enter into a fixed rate, fixed term contract with the co...
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ON DENIAL OF PETITION FOR REHEARING This is an action for indemnity brought by plaintiff respondent International Harvester Co. (IHC), against defendant appel*1124lant TRW, Inc. (TRW), and defendant Universal Oil Products Co. (UOP). International Harvester seeks to recover damages paid to Ronald and Catherine Farmer in satisfaction of a judgment entered upon a jury verdict in the Farmers’ favor f...
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This appeal arises from an action to enforce the terms of labor agreements signed by defendant-respondent K.H. Davis, requiring payment of fringe benefit contributions to plaintiffs-appellants’ Trust Funds. Appellants appeal from the district court’s disallowance of liquidated damages and attorney fees allegedly due them under the labor agreements. We reverse. Respondent Davis has been in ...
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695 P.2d 1272 (1985) 107 Idaho 1133 STATE of Idaho, Plaintiff-Respondent, v. Chip C. ZIEGLER, Defendant-Appellant. No. 14827. Court of Appeals of Idaho. February 6, 1985. *1273 Stephen S. Hart, Idaho Falls, for defendant-appellant. Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Boise, for plaintiff-respondent. Before HUNTLEY, Acting C.J., and WALTERS and TOWLES, Acting JJ., Special Panel. TOWL...
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Richard and Maren Gill brought suit against Morris Brown, seeking to recover damages sustained when Brown allegedly shot and killed a donkey owned by the Gills. The Gills sought recovery both for property damage and for mental anguish. Before trial, the district court, believing damages for mental anguish to be nonrecoverable, sua sponte ordered that claim stricken from the complaint...
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Plaintiff Marvin G. Luttrell appeals the dismissal of his defamation action against the defendant, United Telephone System, Inc. Plaintiff alleges in his petition that several managerial employees of defendant maliciously communicated defamatory remarks about him between themselves while acting within the scope of their employment. Particularly, he alleges that on or about April 6 or 7 of 1982,...
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The opinion of the court was delivered by This case is before the court on a petition for review of a decision of the Court of Appeals in Luttrell v. United Telephone System, Inc., 9 Kan. App. 2d 620, 683 P.2d 1292 (1984). The facts are fully set forth in the opinion of the Court of Appeals and need not be repeated here. The trial court sustained the motion of the defendant to dismiss for fai...
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This is an appeal by Kelly Sellars from an order granting summary judgment in favor of the defendant, Stauffer Communications, Inc., in a defamation suit. This action was originally filed by plaintiff Kelly Sellars and her husband, James Sellars, as a result of two articles which *574appeared in The Morning Sun, a daily newspaper published by defendant in Pittsburg, Kansas. The articles were publi...
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The opinion of the court was delivered by Vincent Cunningham appeals his conviction by a jury of aggravated burglary (K.S.A. 21-3716), aggravated robbery (K.S.A. 21-3427) and unlawful possession of a firearm (K.S.A. 21-4204). The jury also returned a verdict convicting defendant of one count of aggravated assault but it was set aside upon a post-trial motion. The court granted the State’s motio...
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The opinion of the court was delivered by This is a domestic relations controversy. The appeal is from an order changing the custody of Bethany Hart from Linda Hart (now Neufeld), her mother, to John Hart, her father. John and Linda Hart were married on July 7, 1977. On July 1, 1978, Bethany Lynn Hart was born to them. At that time the Harts lived in Medicine Lodge. John and Linda Hart beca...
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This original proceeding in discipline involves two separate complaints filed by Arno Windscheffel, Disciplinary Administrator, against Marvin Pendergraft, an attorney admitted to the practice of law in the State of Kansas. The complaints will be considered separately. W-3052 William E. Wilson, an inmate at the Kansas State Penitentiary at Lansing, Kansas, complained to the disciplinary administ...
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On the 11th day of July, 1984, a disciplinary complaint was filed by Arno Windscheffel, Disciplinary Administrator, against Charles P. Fleming, Jr., an attorney admitted to the practice of law in the State of Kansas, alleging violations of the Code of Professional Responsibility. A duly constituted panel of the Kansas Board for Discipline of Attorneys, after a hearing at which respondent declined ...
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This is a personal injury case. The plaintiff, Archie Anderson, was injured on the premises of his employer, National Beef Packing Company, (National Beef), when a semitrailer driven by an employee of defendant, National Carriers, Inc., (National Carriers) backed over Anderson. The case was tried to a jury as a comparative negligence action. The jury attributed 29 percent fault to Anderson, 22 ...
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delivered the Opinion of the Court. Defendant pled guilty to sexual intercourse without consent and was sentenced to ten years imprisonment with the last five years suspended. After defendant had served his prison term, the District Court of Yellowstone County revoked the suspended sentence and ordered him returned to prison to serve the remainder of the sentence. Defendant attacks this exercis...
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delivered the Opinion of the Court. Patricia Roesch brings this appeal from an order of the District Court, Fourth Judicial District, Missoula County. The order denied appellant’s motion under Rule 60, M.R.Civ.P. to set aside a previous judgment against her in Missoula County. Appellant and her coplaintiff, Marlene Salway, brought an action against the respondents herein alleging that...
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delivered the Opinion of the Court. Mountain West Farm Bureau Mutual Insurance Company appeals from a judgment entered against it in favor of Bauer Ranch, Inc. and R. F. Bauer in the District Court of the Second Judicial District, Silver Bow County. We affirm the District Court judgment. On December 8, 1982, a 1979 White Freightliner tractor owned by Bauer was totally destroyed b...
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delivered the Opinion of the Court. Safeco Insurance Company brought this action in Lewis and Clark County District Court for a declaratory judgment to determine its rights and obligations under a garage liability insurance policy that it issued to Prospector Chevrolet, Inc. On cross-motions for summary judgment, the District Court ruled that Safeco had no obligation to defend the lawsuit ...
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delivered the Opinion of the Court. Alfred L. Bishop appeals an Order of the Yellowstone County District Court granting Robert E. Hendrickson’s motion for summary judgment. The issues raised are two: first, whether a conversation between Bishop and Hendrickson constituted an enforceable contract to employ Bishop’s daughter; and second, if so, whether Hendrickson breached that contract, proximat...
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OPINION This is an appeal from an NRCP 41(b) dismissal of reformation action. Appellant Geissel is the executrix of the estate of her father, Donald Galbraith. In her amended complaint the executrix claims that a deed of trust and a promissory note drawn by respondent First American Title Company were prepared and took effect in a manner contrary to the intentions of the parties and should ther...
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695 P.2d 1318 (1985) 102 N.M. 369 STATE of New Mexico, ex rel. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Petitioner, v. Hon. Stanley F. FROST, Respondent. No. 15152. Supreme Court of New Mexico. February 4, 1985. Rehearing Denied March 6, 1985. White, Koch, Kelly & McCarthy, David F. Cunningham, William Booker Kelly, Santa Fe, for petitioner. Johnson & Lanphere, Eric D. Lanphere, Albuquerq...
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OPINION A fire occurred at the Marrs Mud Company warehouse in Lovington, New Mexico on February 5, 1982. Both the Lovington and Knowles Fire Departments responded to the fire. The complaint alleged that Moreno, a volunteer fireman with the Lovington Fire Department, and Nichols, a volunteer fireman with the Knowles Fire Department, suffered injuries in performing duties as firemen. The co...
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Appeal by plaintiff below from the trial court’s order denying plaintiff’s motion to tax costs and attorney fees on a judgment by confession entered against defendants below pursuant to 12 O.S.1981 § 1101. The parties will be referred to by their trial court designations. Although plaintiff’s original petition is not included in the record, it appears from the facts related by the parties tha...
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ORDER Petition for Rehearing is hereby granted. It is hereby ordered that the opinion of this Court dated April 12, 1983 (54 OBJ 974) is hereby withdrawn and the opinion of this Court promulgated this date be substituted therefor. BARNES, C.J., SIMMS, V.C.J., and LAVENDER, DOOLIN, HARGRAVE, OPALA, WILSON and KAUGER, JJ„ concur. HODGES, J., dissents. The parties submitted th...
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Patricia Babcock, now Booker, was covered as named insured by four separate *1341 insurance policies covering four vehicles. These policies had been issued .by appellant Mid-Continent Casualty Company. Each of the four policies contained uninsúred motorist coverage provisions covering the named insured and other persons occupying an insured vehicle. At approximately 10:00 p.m., on June 14, 19...
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Four questions are presented on certiora-ri: (1) Was there prejudicial error in the trial court’s granting defendant-manufacturer’s motion in limine? (2) Did the trial court reversibly err in disallowing, on cross-examination, an inquiry into the salary of the manufacturer’s witness-employee whose opinion testimony was sought to be impeached for bias? (3) Did the trial court’s Instruction No. 4...
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The questions presented are whether an oil and gas lease is personalty or an interest in land, and what procedure should be used in the execution of a sheriffs sale of an oil and gas lease. We find that an oil and gas lease creates an interest in realty although it is not per se real estate, and that procedural due process must be followed before property can be sold at a sheriffs sa...
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OPINION On appeal from his conviction of Driving While Under the Influence of Intoxicating Liquor and Transporting an Open Container of Liquor, and sentence of thirty (30) days imprisonment on Count I, and a fine of $100 on Count II, from the District Court of Stephens County, Oklahoma, the appellant, Billy Verlin Bewley, raises eleven assignments of error. The facts are as follows: At about ...
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OPINION On appeal from his conviction of Attempted Burglary, After Former Conviction of a Felony, Case No. CRF-79-54, and sentence of five (5) years imprisonment from the District Court of Noble, County, Oklahoma, the appellant, James E. Smith, raises ten assignments of error. The facts are as follows: Appellant and another man were seen by two witnesses walking back and forth on the...
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MEMORANDUM OPINION The appellant, Merle Perkins, hereinafter referred to as the defendant, was convicted of Second Degree Burglary, After Former Conviction of a Felony, in Bryan County District Court, Case No. CRF-81-163, was sentenced to ten (10) years’ imprisonment, and he appeals. Testimony revealed that at approximately 3:00 a.m. on January 20th, 1981, Cindy Spencer awoke at her Durant, Oklah...
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Plaintiffs in this declaratory judgment action are residents of Lane County and its sheriff. They contend that defendants county and county officers failed to appropriate adequate funds in the 1983-84 budget to enable the sheriff to perform his mandated law enforcement duties and functions and that defendants thereby violated the Oregon Constitution and the mandating statutes. Plaintiffs also con...
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Petitioner has operated a church at the same location in the city of Medford since 1952. In 1973, the city approved petitioner’s request to change the zone of the property to R-4. The church use is permitted in that zone. In 1979, petitioner began operating a three-grade primary elementary school on the church premises. The school is a conditional use in the zone. Petitioner has not attempted t...
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Defendant appeals his convictions for carrying a concealed and loaded handgun in his automobile. ORS 166.250; Portland City Code § 14.32.010. He assigns as error the trial court’s refusal to suppress evidence of the handgun seized after a nonconsensual, warrantless search of a closed leather bag seized as a result of a search of the locked trunk of his automobile. Because we conclude that the evid...
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Claimant petitions for review of an order of the Employment Appeals Board that adopted a referee’s order denying her unemployment benefits. We reverse and remand. Claimant, who is mentally handicapped, was employed as a bus person at The Hickory Stick Restaurant from November 1976 to October 1983. The issue presented is whether she voluntarily left her employment without good cause. ORS 657.176...
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Defendant appeals from an order finding him in contempt of court. Because the trial court specifically found that defendant’s actions were not wilful, we reverse. On February 9, 1984, a restraining order was issued under the Abuse Prevention Act, ORS 107.700 etseq, prohibiting defendant from making contact with relator, his ex-wife. On February 29, after defendant had contacted his wife on two dif...
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