Burnam v. Garon Development Corp.

PER CURIAM Plaintiff appeals from an adverse judgment entered after a jury trial. She contends that the trial court erred in striking claims of trespass from her complaint, and allegations of negligence in her personal injury claim. Defendants move to dismiss the appeal, contending that it was taken from a judgment that does not dispose of all the claims involved in the case and lacks an express determination that there is no just reason for delay, ORCP 67B, and, therefore, is not a final order within the meaning of ORS 19.010(2)(e). We earlier denied defendants’ motion with leave to renew it. At oral argument we encouraged the parties to enter into a stipulation, as was suggested in Osborne v. International Harvester Company, 60 Or App 563, 564 n 2, 654 P2d 1148 (1982), agreeing to dismiss the already abandoned cross-claims. At that time we were of the opinion that defendants’ earlier motion to dismiss the appeal, based on lack of proper service on the clerk of the trial court, had been properly denied. We no longer hold that view. See McQuary v. Bel Air Convalescent Home, 64 Or App 528, 669 P2d 348 (1983). We now hold that, because the judgment appealed from fails to dispose of the cross-claim brought by Dale Industries, Inc. against defendants Garon Development Corporation and Leisure Resources Inc. for Dale’s costs in defending plaintiffs action, it is not a final judgment within the meaning of ORS 19.010(2) (e). Appeal dismissed.