IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION TWO

THERESA CONRADI,

Appellant,

v.

O’REILLY AUTOMOTIVE, INC. and 

STATE OF WASHINGTON 

DEPARTMENT OF LABOR AND 

INDUSTRIES,

Respondents.

)

)

)

)

)

)

)

)

)

)

)

)

No. 52859-2-II

UNPUBLISHED OPINION

SIDDOWAY, J.1 — Theresa Conradi unsuccessfully appealed a decision of the 

Board of Industrial Insurance Appeals (Board) to superior court. She successfully 

defended against a cross appeal by O’Reilly Automotive, Inc. (O’Reilly), her former 

employer, however, and was awarded her attorney fees and costs. She had argued that 

O’Reilly had no right to appeal, having failed to file a petition for review of the Board’s 

decision, but the superior court allowed O’Reilly’s evidence and argument to be 

presented at the jury trial.

 

1 The Honorable Laurel Siddoway is a Court of Appeals, Division Three, judge 

sitting in Division Two under CAR 21(a).

Filed

Washington State

Court of Appeals

Division Two

August 18, 2020
No. 52859-2-II

Conradi v. O’Reilly Automotive

2

Ms. Conradi appeals, arguing that O’Reilly’s cross appeal should have been 

dismissed and that she is entitled to a new trial at which she does not have to contend 

with its evidence and claims. We grant O’Reilly’s motion to dismiss the appeal as moot.

FACTS AND PROCEDURAL BACKGROUND

Theresa Conradi filed a claim for an industrial injury with the Department of 

Labor and Industries (Department) in 2012. The claim was allowed and she was paid 

benefits on and off through 2015. Dissatisfied with the Department’s ultimate

disposition, she appealed its final orders to the Board. She sought additional time loss 

benefits, a pension due to permanent total disability, or, if not a pension, then an 

increased impairment award. 

The Industrial Appeals Judge’s (IAJ) proposed decision and order granted her the 

additional time-loss compensation benefits and increased her award for permanent partial 

disability (PPD) from a Category 2 to a Category 3. It denied the request for a pension. 

Ms. Conradi filed a timely petition for review by the Board. Her employer, 

O’Reilly, did not. When her petition was granted by the Board, however, O’Reilly filed a 

response in which it raised objections to some of the IAJ’s findings of fact and 

conclusions of law, arguing that Ms. Conradi’s claim “should have remained closed 

without any additional time loss compensation [and] . . . with a Category 2 PPD award.” 

Clerk’s Papers at 48. 
No. 52859-2-II

Conradi v. O’Reilly Automotive

3

The Board affirmed the IAJ’s findings and conclusions, adding a further 

explanation why Ms. Conradi was not entitled to a pension. 

Ms. Conradi appealed the Board’s order to superior court. O’Reilly cross 

appealed. Ms. Conradi moved for an order dismissing O’Reilly’s cross appeal, arguing 

that it had waived objections to the IAJ’s proposed decision and order by failing to file its 

own petition for review. The superior court denied the motion to dismiss. 

The appeal proceeded to a jury trial, at which Ms. Conradi renewed her motion to 

dismiss O’Reilly’s cross appeal. The motion was again denied. The trial judge allowed 

her to have a standing objection to the evidence presented by O’Reilly.

The jury returned a verdict affirming the decision and order of the Board. The 

trial court awarded Ms. Conradi her attorney fees and costs.

Ms. Conradi appeals. O’Reilly moved to dismiss the appeal as moot.

ANALYSIS

RAP 18.9(c)(2) permits this court to dismiss an appeal if the appeal is frivolous or 

moot. To decide O’Reilly’s motion, we will assume, although we do not decide, that the 

trial court should have dismissed O’Reilly’s cross appeal.

“A case is moot when it involves only abstract propositions or questions, the 

substantial questions in the trial court no longer exist, or a court can no longer provide 

effective relief.” Spokane Research & Def. Fund v. City of Spokane, 155 Wn.2d 89, 99, 

117 P.3d 1117 (2005). A court may decide a technically moot case if it involves “matters 
No. 52859-2-II

Conradi v. O’Reilly Automotive

4

of continuing and substantial public interest.” Sorenson v. City of Bellingham, 80 Wn.2d 

547, 558, 496 P.2d 512 (1972). Ms. Conradi does not argue that this is such a case; 

instead, she argues that her case is not moot. “Logically,” she argues, “if this court holds 

that the employer’s cross-appeal should have been dismissed, and was improperly before 

the jury, Ms. Conradi is entitled to a new trial on the sole issue of permanent and total 

disability.” Reply Br. at 1.

In fact, it is not logically the case that if an error is made, then a party is entitled to 

a new trial. We often say that parties are not entitled to a perfect trial. “[T]he perfect 

case has not been and never will be tried.” Kappelman v. Lutz, 141 Wn. App. 580, 591, 

170 P.3d 1189 (2007), aff’d, 167 Wn.2d 1, 217 P.3d 286 (2009). Under the nonconstitutional harmless error analysis, the focus is whether a reasonable probability exists 

that the error affected the outcome. State v. Romero, 113 Wn. App. 779, 791-92, 54 P.3d 

1255 (2002). 

Had O’Reilly’s cross appeal been dismissed, it would still have been entitled to 

present its evidence that Ms. Conradi’s injury fell short of the permanent total disability 

she was claiming. The jury would have been given the same instructions about her claim, 

and “Washington courts have, for years, firmly presumed that jurors follow the court’s 

instructions.” Diaz v. State, 175 Wn.2d 457, 474, 285 P.3d 873 (2012). Ms. Conradi’s 

only, wholly speculative suggestion of how she might have been prejudiced by the 
No. 52859-2-II

Conradi v. O’Reilly Automotive

5

superior court’s presumed error is that the cross appeal created an option for the jury to 

“essentially ‘split the baby.’” Br. of Appellant at 16. 

Ms. Conradi does not challenge the sufficiency of the evidence to support the 

jury’s verdict rejecting her appeal. She makes no meaningful effort to demonstrate that 

the cross appeal affected the outcome of her appeal. Under these circumstances, there is 

no effective relief we can provide.

O’Reilly makes a passing request for an award of its reasonable attorney fees and 

costs on appeal under RAP 18.1 and 18.9, but it fails to devote a section of its brief to 

explaining the request as required by RAP 18.1(b). The request is denied.

The appeal is dismissed as moot.2

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

_____________________________

Siddoway, J.

WE CONCUR:

_____________________________ _____________________________

Lee, C.J. Maxa, J.

 

2 Dismissal could also have been requested on the basis that Ms. Conradi is not an 

aggrieved party under RAP 3.1. We dispose of the appeal on the basis raised by 

O’Reilly. See RAP 12.1.