Court of Appeals of Oregon, 1983

Parr Lumber Co. v. Guest

Parr Lumber Co. v. Guest
Court of Appeals of Oregon · Decided July 6, 1983 · Buttler, Rossman, Warren
63 Or. App. 798; 665 P.2d 1270; 1983 Ore. App. LEXIS 3046

Parr Lumber Co. v. Guest

Opinion of the Court

WARREN, J.

Plaintiff appeals from an order granting defendants’ motion for summary judgment and dismissing plaintiffs suit for foreclosure of a construction lien. We dismiss the appeal, because the order was not a final judgment under ORCP 67B and, therefore, is not appealable under ORS 19.010.

Plaintiff brought suit to foreclose a construction lien against Erik and Maureen Guest, David and Janice Aho and Kenwood Construction Company (Kenwood). Kenwood had contracted to build a house for the Ahos on land they had contracted to purchase from the Guests. Plaintiff alleged that Kenwood owed it over $12,000 for materials it had supplied for construction of the house. The. Ahos cross-claimed against Kenwood, alleging that it was primarily liable to plaintiff for the materials and that it was liable to the Ahos for damages for breach of the contract to construct the house.

Plaintiff moved for an order of default against Ken-wood, because it failed to appear in the suit. The court entered an order stating that Kenwood “is in default in this proceeding and judgment may be taken against it as prayed for in plaintiffs complaint.” No judgment was ever entered against Ken-wood.

Plaintiff and all defendants except Kenwood moved for summary judgment on the issue of whether plaintiffs lien was valid. The court denied plaintiffs motion, granted defendants’ motion and dismissed plaintiffs suit. The judgment order did not address plaintiffs suit against Kenwood or the Ahos’ cross-claims. Plaintiff appealed from that judgment order.

ORCP 67B provides:

“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims 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. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or *801parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”

The judgment is not a “final judgment,” because it failed to dispose of plaintiffs claim against Kenwood and the Ahos’ cross-claim for breach of contract and the court did not enter a final judgment pursuant to ORCP 67B. Consequently, the judgment is not appealable. ORS 19.010(2)(c); Kuvaas v. Cutrell, 50 Or App 529, 623 P2d 1116 (1981).

Appeal dismissed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.