Leland Properties, Inc. v. Burton Engineering & Survey Co.

This is an action for breach of contract and negligence. Defendant appeals, assigning error to the trial court’s grant of a new trial under ORCP 64 B(l). Plaintiff cross-appeals, assigning error to the trial court’s pretrial ruling excluding evidence of “lost profits” damages. We affirm on the cross-appeal without discussion. We reverse on defendant’s appeal, for the reasons that follow.

The issue on appeal relates to the form of the trial court’s instructions to the jury. After the trial court and counsel had conferred on which instructions would be given, plaintiffs counsel asked whether the…