existing rule in Oregon

2014See, e.g., Bob Godfrey Pontiac, Inc., 291 Or at 329-30 (analyzing a statutory duty claim under section 874A); Miller, 288 Or at 279 n 9 (referring the reader to that provision); Burnette, 284 Or at 725-26 (Linde, J. dissenting) (referring to section 874A as indicating that sometimes “a common law court will assimilate the statutory duty into an existing principle of liability, as for instance [a] negligence action * * *, but that is not always so”).

2014See, e.g., Bob Godfrey Pontiac, Inc., 291 Or at 329-30 (analyzing a statutory duty claim under section 874A); Miller, 288 Or at 279 n 9 (referring the reader to that provision); Burnette, 284 Or at 725-26 (Linde, J. dissenting) (referring to section 874A as indicating that sometimes “a common law court will assimilate the statutory duty into an existing principle of liability, as for instance [a] negligence action * * *, but that is not always so”).

2024For example, after concluding that the plaintiffs did not establish that ORS 105.810 allowed 4 In Simington Gardens, LLC, 308 Or App at 665 , we characterized the claim at issue as one of “trespass to produce or timber” and found support for that spe- cific kind of trespass in ORS 105.810(1).

2024For example, after concluding that the plaintiffs did not establish that ORS 105.810 allowed 4 In Simington Gardens, LLC, 308 Or App at 665 , we characterized the claim at issue as one of “trespass to produce or timber” and found support for that spe- cific kind of trespass in ORS 105.810(1).

1983Div., 27 Or App 473 , 556 P2d 722 (1976)] seems to be that in the former case the unpromulgated directive explained what was necessarily required by the existing rules, whereas in the latter case the directive was a policy-based interpretation of choice of an existing rule which could have been otherwise construed.

1983Div., 27 Or App 473 , 556 P2d 722 (1976)] seems to be that in the former case the unpromulgated directive explained what was necessarily required by the existing rules, whereas in the latter case the directive was a policy-based interpretation of choice of an existing rule which could have been otherwise construed.

2025As noted above, OEC 803(18a)(b) was first enacted in 1989.12 12 The 1989 version of the rule provided, in relevant part: “A statement made by a child victim who is under 10 years of age, which statement describes an act of sexual conduct performed with or on the child by another, is not excluded by [OEC 802] if the statement is offered as evidence Cite as 373 Or 506 (2025) 525 Under the existing rule before that enactment, evi- dence of “[a] complaint of sexual misconduct * * * after the commission of the alleged offense” was admissible under an exception to the hearsay rule, but the evidence

2025As noted above, OEC 803(18a)(b) was first enacted in 1989.12 12 The 1989 version of the rule provided, in relevant part: “A statement made by a child victim who is under 10 years of age, which statement describes an act of sexual conduct performed with or on the child by another, is not excluded by [OEC 802] if the statement is offered as evidence Cite as 373 Or 476 (2025) 495 Under the existing rule before that enactment, evi- dence of “[a] complaint of sexual misconduct * * * after the commission of the alleged offense” was admissible under an exception to the hearsay rule, but the evidence

2022Not long after it started deliberating, the jury sent out a question about the criminal-mischief charge: “So to find the Defendant guilty of a crime of criminal mischief in the first degree, does the Defendant need to have caused $1,000 or more damage by himself, or just as part of a group that caused more than a [sic] $1,000 in damage.” In response to the question, the state took the posi- tion that defendant could be liable if the damage caused by the group exceeded $1,000 and that the existing instruction was sufficient because it would allow for the jury to convict based on a finding that

2016Id.

2015We recognized as much in our decision in Doty v. Coos County, 185 Or App 233, 241-44 , 59 P3d 50 (2002) (explaining that “ORS 660-004-0018 governs whether a change in use is allowed under an existing exception” and provides the process for determining whether a new exception is required by a proposed zone change or plan amendment).

2015We recognized as much in our decision in Doty v. Coos County, 185 Or App 233, 241-44 , 59 P3d 50 (2002) (explaining that “ORS 660-004-0018 governs whether a change in use is allowed under an existing exception” and provides the process for determining whether a new exception is required by a proposed zone change or plan amendment).

2013Defendants counter that the parties to the settlement agreement intended it “to be a replacement contract extinguishing the obligations under the promissory note.” “An executory accord is an agreement for the future discharge of an existing claim by a substituted performance.” McDowell Welding & Pipefitting v. US Gypsum Co., 345 Or 272, 281 , 193 P3d 9 (2008) (internal quotation marks omitted).

2013Defendants counter that the parties to the settlement agreement intended it “to be a replacement contract extinguishing the obligations under the promissory note.” “An executory accord is an agreement for the future discharge of an existing claim by a substituted performance.” McDowell Welding & Pipefitting v. US Gypsum Co., 345 Or 272, 281 , 193 P3d 9 (2008) (internal quotation marks omitted).

2013Id.

2011In particular, the plaintiff focused on “the court’s passing observation” in Hall that “ ‘[Retroactive application of a change in the law may be invalid for depriving a litigant of due process in the literal sense of an opportunity to adjudicate an existing claim, for instance by shortening the terms of a statute of limitations.’ ” Powell, 238 Or App at 687 (quoting Hall, 280 Or at 661-62 ) (brackets in Powell).

2005In support of that contention, defendant relies on Rexnord, Inc. v. Ferris, 69 Or.App. 146, 150 , 684 P.2d 26 (1984), where we stated: "Although Public Market Co. v. Portland and its progeny provide that prejudgment interest on readily computable compensatory *77 damages for breach of contract is proper, we find no authority extending that rule to punitive damages, which are not readily computable, and we decline to do so here." Defendant misreads Rexnord, Inc. That case does not create a separate or new exception to the rule requiring interest on money as it becomes due; rather, it points out

2005In support of that contention, defendant relies on Rexnord, Inc. v. Ferris, 69 Or.App. 146, 150 , 684 P.2d 26 (1984), where we stated: "Although Public Market Co. v. Portland and its progeny provide that prejudgment interest on readily computable compensatory *77 damages for breach of contract is proper, we find no authority extending that rule to punitive damages, which are not readily computable, and we decline to do so here." Defendant misreads Rexnord, Inc. That case does not create a separate or new exception to the rule requiring interest on money as it becomes due; rather, it points out

2004We do not entirely agree with either claimant or the department. 1 We held in Sun Veneer v. Employment Div., 105 Or App 198 , 201 n 2, 804 P2d 1174 (1991), that the term “misconduct” is a delegative term requiring the department to “complet[e] a value judgment that the legislature itself has only indicated * * The department does this through its authorized representatives, who “interpret the law in the process of applying it.” Trebesch v. Employment Div., 300 Or 264, 273 , 710 P2d 136 (1985).

2004We do not entirely agree with either claimant or the department. 1 We held in Sun Veneer v. Employment Div., 105 Or App 198 , 201 n 2, 804 P2d 1174 (1991), that the term “misconduct” is a delegative term requiring the department to “complet[e] a value judgment that the legislature itself has only indicated * * The department does this through its authorized representatives, who “interpret the law in the process of applying it.” Trebesch v. Employment Div., 300 Or 264, 273 , 710 P2d 136 (1985).

2004We do not entirely agree with either claimant or the department. 1 We held in Sun Veneer v. Employment Div., 105 Or App 198 , 201 n 2, 804 P2d 1174 (1991), that the term “misconduct” is a delegative term requiring the department to “complet[e] a value judgment that the legislature itself has only indicated * * The department does this through its authorized representatives, who “interpret the law in the process of applying it.” Trebesch v. Employment Div., 300 Or 264, 273 , 710 P2d 136 (1985).

2004We do not entirely agree with either claimant or the department. 1 We held in Sun Veneer v. Employment Div., 105 Or App 198 , 201 n 2, 804 P2d 1174 (1991), that the term “misconduct” is a delegative term requiring the department to “complet[e] a value judgment that the legislature itself has only indicated * * The department does this through its authorized representatives, who “interpret the law in the process of applying it.” Trebesch v. Employment Div., 300 Or 264, 273 , 710 P2d 136 (1985).

1999Fulgham v. SAIF, 63 Or App 731 , 666 P2d 850 (1983).

1999Fulgham v. SAIF, 63 Or App 731 , 666 P2d 850 (1983).

1996At least as early as Seeborg, 284 Or. at 699 , 588 P.2d 1100 , courts have been required to evaluate the existence of a genuine issue of material fact "on the record" before them.

1996At least as early as Seeborg, 284 Or. at 699 , 588 P.2d 1100 , courts have been required to evaluate the existence of a genuine issue of material fact "on the record" before them.

1995In July, 1992, the Board granted petitioner’s request for review of that decision, and, pursuant to Williams v. Board of Parole, 107 Or App 515 , 812 P2d 443 (1991), on recon 112 Or App 108 , 828 P2d 465 , rev dismissed 313 Or 300 (1992), the Board applied former OAR 255-40-025(2) to determine the appropriate reduction.

1995In July, 1992, the Board granted petitioner’s request for review of that decision, and, pursuant to Williams v. Board of Parole, 107 Or App 515 , 812 P2d 443 (1991), on recon 112 Or App 108 , 828 P2d 465 , rev dismissed 313 Or 300 (1992), the Board applied former OAR 255-40-025(2) to determine the appropriate reduction.

1995In July, 1992, the Board granted petitioner’s request for review of that decision, and, pursuant to Williams v. Board of Parole, 107 Or App 515 , 812 P2d 443 (1991), on recon 112 Or App 108 , 828 P2d 465 , rev dismissed 313 Or 300 (1992), the Board applied former OAR 255-40-025(2) to determine the appropriate reduction.

1995In July, 1992, the Board granted petitioner’s request for review of that decision, and, pursuant to Williams v. Board of Parole, 107 Or App 515 , 812 P2d 443 (1991), on recon 112 Or App 108 , 828 P2d 465 , rev dismissed 313 Or 300 (1992), the Board applied former OAR 255-40-025(2) to determine the appropriate reduction.

1991In Associated Oregon Veterans v. DVA, 94 Or App 510, 514 , 766 P2d 1040 (1988), aff’d 308 Or 476 , 782 P2d 418 (1989), we held: “An administrative agency need not engage in the formalities of rulemaking if its directive is merely an application of an existing rule and if the existing rule necessarily requires the result set forth in that directive.

1991In Associated Oregon Veterans v. DVA, 94 Or App 510, 514 , 766 P2d 1040 (1988), aff’d 308 Or 476 , 782 P2d 418 (1989), we held: “An administrative agency need not engage in the formalities of rulemaking if its directive is merely an application of an existing rule and if the existing rule necessarily requires the result set forth in that directive.