674 P.2d 87 | Or. Ct. App. | 1984
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.
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.
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.
Plaintiffs’ cross-appeal urges that the trial court erred in allowing Kingswood to amend its pleadings during trial to conform to the evidence.