In the Matter of the Compensation of Steven Vaida, Claimant.
HOWELLS CUSTOM CABINETS, Respondent Cross-Petitioner. Steven VAIDA, Petitioner Cross-Respondent,
Compensation Board 1300580
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.
P. Keene and Oregon Workers' Compensation Institute, LLC,
DeVore, Presiding Judge, and Lagesen, Judge, and Garrett,
allowed; former disposition withdrawn; affrmed on petition,
cross-petition dismissed as moot.
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
Or. 387] Reconsideration allowed; former disposition
withdrawn; affrmed on petition, cross-petition dismissed as
Or. 388] LAGESEN, J.
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.
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."
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."
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.
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 ...