# State Ex Rel. Juvenile Department v. Pfaff > Court of Appeals of Oregon · December 22, 1999 · 164 Or. App. 470 URL: https://www.frixlaw.com/law-library/cases/9586196 ## Case - **Full name:** In the Matter of Christopher Pfaff, a Minor Child. STATE Ex Rel JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, Respondent, v. Christopher PFAFF, Appellant - **Court:** Court of Appeals of Oregon - **Decided:** December 22, 1999 - **Citations:** 164 Or. App. 470; 994 P.2d 147; 1999 Ore. App. LEXIS 2128 - **Precedential status:** Published - **Opinion:** Dissent by Wollheim - **Judges:** Deits, Edmonds, De Muniz, Landau, Haselton, Armstrong, Linder, Wollheim, Brewer - **Cited by:** 27 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9586196 ## How later opinions describe it (automated extraction) - stating that, regarding OEC 803(4), “the declarant’s motivation *** is the touchstone of reliability” ## Opinion text WOLLHEIM, J., dissenting. I do not agree with the majority that the trial court’s judgment in favor of the state can be affirmed as “right for the wrong reasons” on the basis of a reason that the state conceded to be wrong in the trial court but now seeks to revitalize on appeal. I disagree initially with the majority’s essential starting premise that the so-called “right for the wrong reason doctrine” was intended to be or has ever been applied in a situation such as this. It is one thing to say that an appellate court may sometimes sustain a trial court’s admission of evidence or other ruling for reasons that differ from those on which the ruling was based. It is quite another thing to say that a party may expressly disavow any reliance on a particular ground for a ruling at trial, and thereby circumvent or abort the opposing party’s need or opportunity for a factual or legal response, but may then successfully seek an affirmance on appeal by relying on the ground for the ruling that it previously disavowed. Even given the majority’s apparently broader view of the appropriate uses of the “right for the wrong reason doctrine,” however, I am nevertheless unable to agree with the result the majority reaches here. The majority states: *499 “The necessary and practical predicate for applying that principle is that the record is adequately developed to support the alternative grounds. * * * If, however, the alternative ground for affirmance — and, particularly, for admission of evidence — is asserted for the first time on appeal and if it appears that the opposing party could have developed the record differently had that ground been raised at trial, then preservation principles preclude reliance on the new, alternative ground.” 164 Or App at 478 (citations omitted). The majority further states that certain factual matters that are integral to the application of OEC 803(4) “must be assessed by the court on a case-by-case basis.” 164 Or App at 482 (footnote omitted). Notwithstanding those statements, however, the majority postulates that it “do[es] not believe that the state’s concession materially affected the development of the record with respect to the (in)applicability of OEC 803(4)” in this case. 164 Or App at 478. The question, of course, is what is the basis for the majority’s belief? Child had no reason to make a record — let alone his best case — about an issue that the state’s concession and its stated bases for offering the evidence made irrelevant. In fact, if child attempted to make such a record, then the trial court would have prevented any such effort based on the state’s concession. Finally, the majority insists that one of the purposes of the doctrine it invokes is “to avoid an unnecessary remand.” 164 Or App at 478. The majority proceeds to imply that a reversal and remand here would be without purpose, because the state could simply offer the same evidence for the “right” reason at any retrial, and it would be properly received, presumably leading to the same ultimate result as the one under review. My reason for disagreeing with that ground for the majority’s conclusion is the complement of my reasons for disagreeing with its other grounds. Just as this court should not permit the state’s tactic to obscure our function of identifying and remedying error, we should not deter ourselves from performing that function by speculating how the state will later perform its appropriate functions. Once we have reversed and remanded, it is up to the state, not us, *500 to decide whether there will be any further proceedings at which to use the evidence. 1 In the alternative, once we have reversed and remanded, the state would be precluded from arguing that the disputed evidence was admissible under the medical diagnosis exception to the hearsay rule due to the law of the case doctrine. That doctrine was described in State v. Pratt, 316 Or 561, 569 , 853 P2d 827 (1993) (quoting with approval from Simmons v. Wash. F.N. Ins. Co., 140 Or 164, 166 , 13 P2d 366 (1932)): “ ‘It is a general principle of law and one well recognized in this state that when a ruling or decision has been once made in a particular case by an appellate court, while it may be overruled in other cases, it is binding and conclusive both upon the inferior court in any further steps or proceedings in the same litigation and upon the appellate court itself in any subsequent appeal or other proceeding for review.’ ” I respectfully dissent. It is far from apparent that the state has given enough thought to whether and how to proceed in a matter like this one. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9586196. Public record. Not legal advice.