Moffet v. Ginther

674 P.2d 87, 66 Or. App. 498, 1984 Ore. App. LEXIS 2509

Opinion

PER CURIAM

Plaintiffs brought an action against defendants Kingswood Development Company (Kingswood), Gene Ginther and Marvin Heath, alleging negligence, breach of implied warranty, and intentional misrepresentation in the construction and sale of a house and lot.¹ In separate answers, Kingswood and Ginther denied any wrongdoing. Kingswood also cross-claimed against Ginther and Heath, claiming indemnity. Ginther answered, denying the cross-claim. Before trial, Kingswood amended its answer by deleting its cross-claims against Ginther and Heath and adding affirmative defenses. After trial to a jury, plaintiffs prevailed on their negligence and implied warranty claims. Kingswood appeals, and plaintiffs cross-appeal.²

On appeal the parties make no reference to plaintiffs’ claims against Ginther and Heath, and the record fails to disclose any disposition of them. Moreover, although Kingswood apparently abandoned its cross-claim prior to trial, the record shows ho judgment entered pursuant to a stipulated order of dismissal.

Because the judgment disposes of fewer than all of the claims and parties, before an appeal could be taken it was incumbent on the trial court to make an express determination that there is no just reason for delay in the entry of judgment. ORCP 67B. There was no such determination here.

Appeal and cross-appeal dismissed.

1 Kingswood was the builder-vendor of the house. Ginther and Heath were partners and developers of the subdivision, which included plaintiffs’ lot. Ginther was also the engineer who planned the development.

2 Plaintiffs’ cross-appeal urges that the trial court erred in allowing Kingswood to amend its pleadings during trial to conform to the evidence.