David Runner’s Appellate Updates: October 25, 2017

Home/Uncategorized/David Runner’s Appellate Updates: October 25, 2017

David Runner’s Appellate Updates: October 25, 2017

David Runner/SAIF

Steven Vaida v. Howells Custom Cabinets 288 Or App 386 (2017) (Lagesen, J.)

This case involves some very fine points of appellate procedure having to do with the court’s disposition of a case, its designation of the prevailing parties, and its award of costs. The worker filed a petition for judicial review of a board order and the employer filed a cross-petition. The court affirmed the board’s order without opinion, designating the employer as the prevailing party on the worker’s petition, designating the worker as the prevailing party on the employer’s cross-petition, and awarding costs to the worker on the cross-petition.

The employer requested reconsideration of the disposition with respect to the cross-petition, contending that its cross-petition was “contingent” on the worker prevailing on his petition, and thus that by affirming the board’s decision on the petition, the cross-petition was rendered moot. The court agreed and amended its disposition of the case to dismiss the cross-petition as moot. However, the court also held that no statute or rule recognizes a distinction between a cross-petition that is “contingent” and one that is not. The court thus concluded that its dismissal of the cross-petition did not change the worker’s status as the prevailing party on the cross-petition, and so refused to modify it designation of the prevailing parties in that respect. Finally, the court agreed with the employer that, under the circumstances, no costs should be awarded to the worker on either the petition or the cross-petition.

Here is the media release link:


And the opinions link:


Comment for appellate nerds:  Seems like the employer in this case should have asserted a cross-assignment of error, which is contingent by nature, see ORAP 5.57(2), rather than file a cross-petition for judicial review that it viewed as “contingent” on the outcome of the worker’s petition.


David Runner is an attorney with SAIF Corporation who periodically provides updates of important Oregon workers’ compensation litigation; used with permission. Click here to contact David.