cross-assignment error in Oregon

2024Because the relief DLCD seeks is not available via a cross-assignment of error, State v. Clayton, 210 Or App 442 , 446- 47, 150 P3d 1078 (2007), Murray v. State of Oregon, 203 Or App 377, 388 , 124 P3d 1261 (2005), rev den, 340 Or 672 (2006), we reject DLCD’s cross-assignment, and deny the motion to strike as moot. *324 or nearby agricultural lands.” In Thomas’s view, the test under that rule is whether the physical land itself is “necessary to permit farm practices to be undertaken on adjacent or nearby agricultural lands.” LUBA concluded that the rule “asks not only whether the land itself i

2024Because the relief DLCD seeks is not available via a cross-assignment of error, State v. Clayton, 210 Or App 442 , 446- 47, 150 P3d 1078 (2007), Murray v. State of Oregon, 203 Or App 377, 388 , 124 P3d 1261 (2005), rev den, 340 Or 672 (2006), we reject DLCD’s cross-assignment, and deny the motion to strike as moot. *324 or nearby agricultural lands.” In Thomas’s view, the test under that rule is whether the physical land itself is “necessary to permit farm practices to be undertaken on adjacent or nearby agricultural lands.” LUBA concluded that the rule “asks not only whether the land itself i

2011We reject the Frasers’ cross-assignment of error without further discussion, for the reasons set forth in DLCD v. Crook County, 242 Or App 580 , 256 P3d 178 (2011).

2011We reject the Frasers’ cross-assignment of error without further discussion, for the reasons set forth in DLCD v. Crook County, 242 Or App 580 , 256 P3d 178 (2011).

2003In all events, as described below, defendant’s contention could not properly be characterized as a cross-assignment of error because defendant’s contention, if correct, would require modification of the trial court’s judgment. 4 See also McKinley v. Owyhee Project North Board of Control, 103 Or App 253, 268 , 798 P2d 673 , mod in part on other grounds, 104 Or App 576 , 802 P2d 677 (1990), on recons, 106 Or App 366 , 807 P2d 338 , rev den, 311 Or 426 (1991) (If the plaintiffs were to prevail on their “cross-assignment of error,” they “could recover all of their damages.

2003In all events, as described below, defendant’s contention could not properly be characterized as a cross-assignment of error because defendant’s contention, if correct, would require modification of the trial court’s judgment. 4 See also McKinley v. Owyhee Project North Board of Control, 103 Or App 253, 268 , 798 P2d 673 , mod in part on other grounds, 104 Or App 576 , 802 P2d 677 (1990), on recons, 106 Or App 366 , 807 P2d 338 , rev den, 311 Or 426 (1991) (If the plaintiffs were to prevail on their “cross-assignment of error,” they “could recover all of their damages.

2003In all events, as described below, defendant’s contention could not properly be characterized as a cross-assignment of error because defendant’s contention, if correct, would require modification of the trial court’s judgment. 4 See also McKinley v. Owyhee Project North Board of Control, 103 Or App 253, 268 , 798 P2d 673 , mod in part on other grounds, 104 Or App 576 , 802 P2d 677 (1990), on recons, 106 Or App 366 , 807 P2d 338 , rev den, 311 Or 426 (1991) (If the plaintiffs were to prevail on their “cross-assignment of error,” they “could recover all of their damages.

2003In all events, as described below, defendant’s contention could not properly be characterized as a cross-assignment of error because defendant’s contention, if correct, would require modification of the trial court’s judgment. 4 See also McKinley v. Owyhee Project North Board of Control, 103 Or App 253, 268 , 798 P2d 673 , mod in part on other grounds, 104 Or App 576 , 802 P2d 677 (1990), on recons, 106 Or App 366 , 807 P2d 338 , rev den, 311 Or 426 (1991) (If the plaintiffs were to prevail on their “cross-assignment of error,” they “could recover all of their damages.

2003In all events, as described below, defendant’s contention could not properly be characterized as a cross-assignment of error because defendant’s contention, if correct, would require modification of the trial court’s judgment. 4 See also McKinley v. Owyhee Project North Board of Control, 103 Or App 253, 268 , 798 P2d 673 , mod in part on other grounds, 104 Or App 576 , 802 P2d 677 (1990), on recons, 106 Or App 366 , 807 P2d 338 , rev den, 311 Or 426 (1991) (If the plaintiffs were to prevail on their “cross-assignment of error,” they “could recover all of their damages.

2003In all events, as described below, defendant’s contention could not properly be characterized as a cross-assignment of error because defendant’s contention, if correct, would require modification of the trial court’s judgment. 4 See also McKinley v. Owyhee Project North Board of Control, 103 Or App 253, 268 , 798 P2d 673 , mod in part on other grounds, 104 Or App 576 , 802 P2d 677 (1990), on recons, 106 Or App 366 , 807 P2d 338 , rev den, 311 Or 426 (1991) (If the plaintiffs were to prevail on their “cross-assignment of error,” they “could recover all of their damages.

2000Oak Crest, 137 Or.App. at 478 n. 2, 905 P.2d 848 .

2000Oak Crest, 137 Or App at 478 n 2.

2025Nonprecedential Memo Op: 337 Or App 644 (2025) 651 Second, respondents raise a cross-assignment of error that they acknowledge need not be addressed unless we were to reverse on one or more of petitioners’ assignments of error.

2024“Under the ‘merger’ doctrine, once a claim is reduced to a judgment, the claim is extinguished, because it is ‘merged’ into the judgment and rights upon the judgment are substituted for the former claim.” Barrett, 320 Or at 378 ; see State ex rel English, 348 3 Continental further contends in a cross-assignment of error that, in the event that we determine that Wausau is not subject to contribution, the judgment should be remanded for a reallocation of contribution. 50 Continental Casualty Co. v. Argonaut Ins.

2024Because the relief DLCD seeks is not available via a cross-assignment of error, State v. Clayton, 210 Or App 442 , 446- 47, 150 P3d 1078 (2007), Murray v. State of Oregon, 203 Or App 377, 388 , 124 P3d 1261 (2005), rev den, 340 Or 672 (2006), we reject DLCD’s cross-assignment, and deny the motion to strike as moot. *324 or nearby agricultural lands.” In Thomas’s view, the test under that rule is whether the physical land itself is “necessary to permit farm practices to be undertaken on adjacent or nearby agricultural lands.” LUBA concluded that the rule “asks not only whether the land itself i

2024Because the relief DLCD seeks is not available via a cross-assignment of error, State v. Clayton, 210 Or App 442 , 446- 47, 150 P3d 1078 (2007), Murray v. State of Oregon, 203 Or App 377, 388 , 124 P3d 1261 (2005), rev den, 340 Or 672 (2006), we reject DLCD’s cross-assignment, and deny the motion to strike as moot. *324 or nearby agricultural lands.” In Thomas’s view, the test under that rule is whether the physical land itself is “necessary to permit farm practices to be undertaken on adjacent or nearby agricultural lands.” LUBA concluded that the rule “asks not only whether the land itself i

2024Id. at 41 .

2022Because we conclude that the trial court did not err in denying defendant’s second motion to suppress, we need not reach the cross-assignment of error. 7 We reject defendant’s argument that State v. Mansor, 363 Or 185, 221 , 421 P3d 323 (2018), stands for the proposition that, once the trial court suppressed evidence under the second warrant, the state was prohibited from ever using that evidence.

2022Because we conclude that the trial court did not err in denying defendant’s second motion to suppress, we need not reach the cross-assignment of error. 7 We reject defendant’s argument that State v. Mansor, 363 Or 185, 221 , 421 P3d 323 (2018), stands for the proposition that, once the trial court suppressed evidence under the second warrant, the state was prohibited from ever using that evidence.

2020See ORAP 5.57(2) (a cross-assignment is appropriate only if, among other things, “the respondent does not seek to reverse or modify the judgment on appeal”); Truck Insurance Exchange v. Friend, 253 Or App 527 , 528 n 2, 291 P3d 743 (2012), rev den, 353 Or 562 (2013) (a cross-appeal was necessary, and the respondent’s cross-assignment of error was insufficient, where the respondent sought modification and reversal of part of the judgment, “rather than reversal of an intermediate ruling of the trial court”). *180 Thus, we are not able to address whether the trial court erred when it ruled that S

2020See ORAP 5.57(2) (a cross-assignment is appropriate only if, among other things, “the respondent does not seek to reverse or modify the judgment on appeal”); Truck Insurance Exchange v. Friend, 253 Or App 527 , 528 n 2, 291 P3d 743 (2012), rev den, 353 Or 562 (2013) (a cross-appeal was necessary, and the respondent’s cross-assignment of error was insufficient, where the respondent sought modification and reversal of part of the judgment, “rather than reversal of an intermediate ruling of the trial court”). *180 Thus, we are not able to address whether the trial court erred when it ruled that S

2018In Behrle , the relevant issue was whether, under ORAP 5.57(2), a petitioner seeking on appeal to uphold an award of post-conviction relief could raise certain issues through a cross-assignment of error. 362 Or. at 510 , 412 P.3d 1179 .

2012See, e.g.,Horn, 180 Or App at 146 (declining to reconsider the post-conviction court’s conclusion that the petitioner’s trial counsel performed deficiently where the state did not cross-assign error to it); State v. Chatfield, 148 Or App 13, 16 , 939 P2d 55 (1997) (rejecting the state’s argument that a motion was untimely filed in light of the trial court’s ruling to the contrary and in the absence of a cross-assignment of error by the state).

2012See, e.g.,Horn, 180 Or App at 146 (declining to reconsider the post-conviction court’s conclusion that the petitioner’s trial counsel performed deficiently where the state did not cross-assign error to it); State v. Chatfield, 148 Or App 13, 16 , 939 P2d 55 (1997) (rejecting the state’s argument that a motion was untimely filed in light of the trial court’s ruling to the contrary and in the absence of a cross-assignment of error by the state).

2011Accordingly, we do not address the neighbors’ cross-assignment further. 11 See Corey v. DLCD, 344 Or 457, 466-67 , 184 P3d 1109 (2008) (“In the end, we hold only that plaintiffs’ contention that Measure 49 does not affect the rights of persons who already have obtained Measure 37 waivers is incorrect.

2011Accordingly, we do not address the neighbors’ cross-assignment further. 11 See Corey v. DLCD, 344 Or 457, 466-67 , 184 P3d 1109 (2008) (“In the end, we hold only that plaintiffs’ contention that Measure 49 does not affect the rights of persons who already have obtained Measure 37 waivers is incorrect.

2011As explained below, we agree with the state that the officer’s consensual search was lawful and that any error in not holding a pretrial hearing on the motion to suppress the evidence was therefore harmless. 3 “During a traffic stop, a police officer may question the driver about criminal activity that is unrelated to the stop, even if the officer does not have any suspicion of such *152 activity, without violating Article I, section 9.” State v. Berry, 232 Or App 612, 615 , 222 P3d 758 (2009), rev dismissed, 348 Or 71 (2010).

2011As explained below, we agree with the state that the officer’s consensual search was lawful and that any error in not holding a pretrial hearing on the motion to suppress the evidence was therefore harmless. 3 “During a traffic stop, a police officer may question the driver about criminal activity that is unrelated to the stop, even if the officer does not have any suspicion of such *152 activity, without violating Article I, section 9.” State v. Berry, 232 Or App 612, 615 , 222 P3d 758 (2009), rev dismissed, 348 Or 71 (2010).

2011Corp., 179 Or App 253, 262 , 40 P3d 506 (2002), we explained that, “[i]n reviewing the denial of a motion to dismiss for lack of personal jurisdiction, we assume the truth of all well-pleaded allegations.

2011Corp., 179 Or App 253, 262 , 40 P3d 506 (2002), we explained that, “[i]n reviewing the denial of a motion to dismiss for lack of personal jurisdiction, we assume the truth of all well-pleaded allegations.

2011As explained below, we agree with the state that the officer’s consensual search was lawful and that any error in not holding a pretrial hearing on the motion to suppress the evidence was therefore harmless. 3 “During a traffic stop, a police officer may question the driver about criminal activity that is unrelated to the stop, even if the officer does not have any suspicion of such *152 activity, without violating Article I, section 9.” State v. Berry, 232 Or App 612, 615 , 222 P3d 758 (2009), rev dismissed, 348 Or 71 (2010).

2011The trial court did not expressly address that issue with respect to Markley’s motion for summary judgment, but in denying Hudler’s motion ruled that plaintiffs’ investment “qualifies as an ‘investment contract’ as defined by the Oregon Supreme Court” in Pratt v. Kross, 276 Or 483 , 555 P2d 765 (1976).

2011The trial court did not expressly address that issue with respect to Markley’s motion for summary judgment, but in denying Hudler’s motion ruled that plaintiffs’ investment “qualifies as an ‘investment contract’ as defined by the Oregon Supreme Court” in Pratt v. Kross, 276 Or 483 , 555 P2d 765 (1976).