McConnell v. Lamb

636 P.2d 983, 54 Or. App. 858, 1981 Ore. App. LEXIS 3600

• Court: Court of Appeals of Oregon
• Decided: November 23, 1981
• Docket: No. A8005-02967, CA A20885
• Status: Published

Opinion

GILLETTE, P. J.

Plaintiff, a well-drilling company, brought this action for $9,315 for the cost of drilling a well. The complaint alleged alternative counts of account stated and quantum meruit. Defendant answered and counterclaimed for certain costs allegedly incurred as a result of plaintiff’s breach of its contract to drill the well. Plaintiff moved for and was granted summary judgment on the theory of an account stated. Defendant appeals.

At the time it granted summary judgment, the trial court neither disposed of the defendant’s counterclaim nor entered an order pursuant to ORS 18.125(1).¹ This appeal is therefore premature. See Kuvaas v. Cutrell, 50 Or App 529, 623 P2d 1116 (1981).

Appeal dismissed.

1 OES 18.125(1) provides:

"(1) When more than one demand for relief is presented in a suit or action, whether as multiple causes of suit or action, counterclaims, cross-claims, or third-party actions or suits, or when multiple parties are involved, the court may direct the entry of a final judgment or decree as to one or more but fewer than all of the causes of suit or action or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment or decree. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the causes of suit or action or the rights and liabilities of fewer than all the parties shall not terminate the proceeding as to any of the causes of suit or action or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment or decree adjudicating all the causes of suit or action and the rights and liabilities of all the parties.”