Benson v. Weaver , 103 Or. App. 320 ( 1990 )

ROSSMAN, J.

Appellants and respondents each have petitioned for reconsideration of our opinion. 102 Or App 225, 793 P2d 348 (1990). ORAP 9.15. We deny appellants’ petition, grant respondents’ petition, modify our opinion and adhere to it as modified.

Respondents point out that the evidence on summary judgment does not support the language in our opening sentence that they “represented that the property had been lawfully partitioned.” We correct that sentence to read:

“Plaintiffs purchased real property from defendants in November, 1979, at which time plaintiffs alleged that defendants represented that the property had been lawfully partitioned.”

References thereafter to “unlawful partitioning” should read “improper partitioning.”

Our modification does not change our determination that the trial court did not err in denying respondents’ motion for summary judgment. Material issues of fact remain, and summary judgment was not appropriate. ORCP 47.

Appellants’ petition for reconsideration denied; respondents’ petition for reconsideration allowed; former opinion modified and adhered to as modified.