In Harshbarger v. Klamath County, No. A163379, the Oregon Court of Appeals addresses timber trespass claims involving noncommercial, ornamental trees. In such cases, the court holds, the plaintiff must prove either (1) that damage to the trees diminished the market value of the real property, or (2) that the effect on the property’s value cannot be determined. According to the court, if the evidence shows that the land’s market value is not affected, then the plaintiff cannot substitute evidence of the value of the trees or costs related to the trespass. The timber trespass claim simply fails.
Angle v Board of Dentistry, No. A162472, decided by the Oregon Court of Appeals on October 17, 2018, is a statutory interpretation case about nonresponsive responses.
ORS 679.170(6) provides that no person shall “fail to respond” to a written request from the Board of Dentistry for information. Does a “nonresponsive” reply count as a failure to respond? In this case, the Oregon Court of Appeals decides that just saying something is not sufficient to comply with ORS 679.170(6). Instead, responses must be responsive. According to the court, telling the board to go fly a kite or writing a letter about the history of Rome will not pass muster. However, a “curt and not overly helpful” response may work.Continue Reading Can an Orthodontist Tell the Oregon Board of Dentistry to Go Fly a Kite? Not Under ORS 679.170(6)
Markstrom v Guard Publishing Co., No. A163317, decided by the Oregon Court of Appeals on October 10, 2018, is about the prelitigation destruction of evidence. The plaintiff, as an employee of the defendant, had been reprimanded and placed on a performance improvement plan, and she had submitted a notice of grievance through her union. Then, while out on a pregnancy-related medical leave, she deleted emails on her work account, against her supervisor’s instructions. She also destroyed text messages between her and her union representative. Ultimately, the plaintiff was fired, and she sued her former employer. The trial court, relying on ORCP 46 D and its inherent authority, dismissed her case as a sanction for her intentional prelitigation destruction of evidence. But the Oregon Court of Appeals reversed that dismissal. In addition to questioning whether the trial court even had any discretion to dismiss for prelitigation spoliation, the Court of Appeals held that the trial court here had failed to sufficiently consider the effect of the plaintiff’s conduct in the context of the case as a whole. Continue Reading Oregon Court of Appeals Questions Trial Court’s Authority to Dismiss Case as Sanction for Prelitigation Spoliation
In Wells Fargo v Clark, No. A162461, the Oregon Court of Appeals held that defendants may file an answer and counterclaim even while their ORCP 21 A motion to dismiss is still pending. In this case, on the morning of the hearing on the defendants’ motion to dismiss, the defendants filed an answer to the plaintiff’s complaint and counterclaims. The same morning, the plaintiff filed a notice of voluntary dismissal. The trial court ruled that the answer and counterclaims were “a legal nullity,” on the theory that parties are not allowed to file a motion to dismiss and an answer at the same time. The Oregon Court of Appeals disagreed, holding that nothing in the Oregon Rules of Civil Procedure prevents a defendant from filing a responsive pleading or counterclaim while its motion to dismiss is still pending.
This opinion has potential implications in any case in which the plaintiff may seek to voluntarily dismiss its claims without the defendant’s consent while a motion to dismiss is pending. ORCP 54 A(1) provides that a plaintiff can voluntarily dismiss its claims without order of the court merely by filing and serving a notice of dismissal “if no counterclaim has been pleaded.”Continue Reading Pending Motion to Dismiss Does Not Prevent Filing Answer & Counterclaims
Wood v Wasco County, No. A161351, addresses how to apply mootness principles to an alleged public records violation. In 2014, allegedly without giving proper notice under Oregon’s Public Meetings Law, the Wasco County Board of Commissioners voted to give notice of the county’s intent to withdraw from an intergovernmental agreement. After the Plaintiff sued to have the notice declared void and also for equitable relief to ensure future compliance with the Public Meetings Law, the Board of Commissioners voted to rescind the notice. According to the Oregon Court of Appeals, that vote mooted the Plaintiff’s suit.
Continue Reading Mootness of a Public Meetings Law Challenge