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In re Compensation of Vaida

Court of Appeals of Oregon

October 25, 2017

In the Matter of the Compensation of Steven Vaida, Claimant.
v.
HOWELLS CUSTOM CABINETS, Respondent Cross-Petitioner. Steven VAIDA, Petitioner Cross-Respondent,

         Workers' Compensation Board 1300580

         On respondent-cross-petitioner's petition for reconsideration of "prevailing party" costs award on cross-petition fled September 14, 2016. Affrmed without opinion September 8, 2016. 280 Or.App. 848, 381 P.3d 1114. Reassigned September 7, 2017.

          Jerald P. Keene and Oregon Workers' Compensation Institute, LLC, for petition.

          Before DeVore, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

         Reconsideration allowed; former disposition withdrawn; affrmed on petition, cross-petition dismissed as moot.

         Case Summary: Employer seeks reconsideration of Vaida v. Howells Custom Cabinets, 280 Or.App. 848, 381 P.3d 1114 (2016), a workers' compensation case in which claimant fled the petition for judicial review and employer fled the cross-petition. The Court of Appeals affrmed the Workers' Compensation Board's order without written opinion. Employer was designated as the prevailing party on the petition, and claimant was designated as the prevailing party on the cross-petition. On reconsideration, employer requests that the Court of Appeals modify its disposition to dismiss the cross-petition as moot with no designation of a prevailing party on the cross-petition. Held: Employer's cross-petition was rendered moot by the Court of Appeals' decision affrming the board's order, making dismissal the appropriate disposition. Following ORAP 13.05, the court adhered to its prevailing party disposition, but concluded that the parties should bear their own costs on appeal.

         [288 Or. 387] Reconsideration allowed; former disposition withdrawn; affrmed on petition, cross-petition dismissed as moot.

         [288 Or. 388] LAGESEN, J.

         Employer seeks reconsideration of our decision in Vaida v. Howells Custom Cabinets, 280 Or.App. 848, 381 P.3d 1114 (2016), a workers' compensation case in which claimant filed the petition for judicial review and employer filed the cross-petition. We affirmed the Workers' Compensation Board's (board) order without a written opinion. We designated employer as the prevailing party on the petition and claimant as the prevailing party on the cross-petition, and we awarded claimant costs on the cross-petition.

         In its petition for reconsideration, employer requests that we modify our disposition to dismiss the cross-petition as moot with no designation of a prevailing party on the cross-petition. Employer states that its cross-petition was "precautionary, " to be addressed only if we reversed the board's order. Employer asserts that our decision affirming the board's order "rendered its precautionary cross-petition moot." Pointing to our decision on reconsideration in Village at North Pointe Condo. Assn. v. Bloedel Constr., 281 Or.App. 322, 383 P.3d 409 (2016) (Village), employer argues that the proper disposition of the cross-petition under these circumstances is dismissal of the cross-petition with no designation of a prevailing party on the cross-petition. Employer reasons that, because we were "not required to address the contingent cross-petition, *** neither party can be said to have 'prevailed' on it."

         We agree with employer that its cross-petition was rendered moot by our decision affirming the board's order under the circumstances of this case. See Dept. of Human Services v. G. D. W., 353 Or. 25, 32, 292 P.3d 548 (2012) ("As a general rule, a case becomes moot when the court's decision no longer will have a practical effect on the rights of the parties."). Accordingly, we allow reconsideration, withdraw our former disposition, and replace it with the following disposition: "Affirmed on petition; cross-petition dismissed as moot."

         As to our prevailing party designation, we adhere to our designation of claimant as the prevailing party on the cross-petition. Employer is correct that, in Village, we did what employer requests: We modified our prior disposition of [288 Or. 389] a cross-appeal to dismiss the cross-appeal as moot without designating a prevailing party where, as here, our disposition of the primary appeal had rendered the cross-appeal moot. We deemed it "appropriate" under those circumstances "to revise the prevailing-party designation on the cross-appeal to indicate that there is no prevailing party on the cross-appeal." Village, 281 Or.App. at 333. However, in Village, neither we nor the parties addressed certain provisions of ORAP 13.05.

         We begin by addressing ORS 19.450(1), which defines a "decision" of the appellate courts, and specifies what a Court of Appeals decision must contain:

"'Decision' means a memorandum opinion, an opinion indicating the author or an order denying or dismissing an appeal issued by the Court of Appeals or the Supreme Court. The decision shall state the court's disposition of the judgment being appealed, and may provide for final disposition of the cause. The decision shall designate the prevailing party or parties, state whether a party or parties will be ...

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