S056494, Opinion — Snider v. Production Chemical Manufacturing, Inc.

257
Argued and submitted May 18, 2009, decision of Court of Appeals and judgment of
circuit court affirmed April 29, 2010
Garland SNIDER,
Respondent on Review,
v.
PRODUCTION CHEMICAL MANUFACTURING, INC.,
a California corporation,
Petitioner on Review.
(CC 0502-01434; CA A131621; SC 8056494)
230 P3d 1
En Banc
On review from the Court of Appeals.*
"' Appeal from Multnomah County Circuit Court, Robert S. Gardner, Judge.
221 Or App 593, 191 P3d 691 (2008}.

258 	Snider v. Production Chemical Manufacturing, Inc.
Timothy 	R. 	Volpert, 	Davis 	Wright 	Tremaine 	LLP,
Portland, argued the cause and filed the brief for petitioner
on review. With him on the brief was Marlin Ard, Sisters.
Richard A. 	Carlson, 	Drakulich & 	Carlson PC, 	Lake
Oswego, argued the cause and filed the brief for respondent
on review.
Scott A. Shorr, Stoll Stoll Berne Lokting & Shlachter PC,
Portland, filed the brief for amicus curiae Oregon Trial
Lawyers Association.
KISTLER,J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.

Cite as 348 Or 257 	259
KISTLER,J.
ORS 36.730 provides that an appeal "may be taken"
from an interlocutory order denying a petition to compel arbi-
tration. In this case, defendant did not take an appeal pur-
suant to that statute. Instead, defendant appealed from the
general judgment and, as part of that appeal, assigned error
to the trial court's order denying its petition to compel arbi-
tration. The Court of Appeals held that it did not have juris-
diction to consider defendant's assignment of error. Snider v.
Production Chemical Manufacturing, Inc., 221 Or App 593,
600, 191 P3d 691 (2008). We allowed defendant's petition for
review to consider the effect of not taking an interlocutory
appeal pursuant to ORS 36. 730 1 and now affirm the Court of
Appeals decision.
Plaintiff worked for defendant as its national sales
manager. The parties entered into a four-year employment
agreement in 1999, which they renewed in 2003. Section 9.02
of that agreement provided:
"Any 	controversy 	between 	(defendant] 	and 	[plaintiff!
involving the construction or application of any of the
terms, provisions, or conditions of this agreement shall on
the written request of either party served on the other be
submitted to arbitration. Arbitration shall comply with and
be governed by the provisions of the California Arbitration
Act."
On January 30, 2005, defendant terminated plain-
tiffs employment. Approximately one week later, plaintiff
filed 	a 	breach 	of contract 	action 	against 	defendant in
Multnomah County Circuit Court. 	Over the next seven
months, defendant challenged plaintiffs complaint, plaintiff
filed amended complaints, defendant answered and filed
affirmative defenses, and the parties engaged in discovery.
Trial 	was 	scheduled 	for 	October 	6, 	2005. 	On
September 30, defendant moved to postpone the trial. The
trial court granted the motion on October 3 and rescheduled
the trial for mid-November. On October 7, defendant asked
1 In its petition for review, defendant asked us to consider other issues that the
Court of Appeals decided. We decline that request and limit review to the issue
stated above and to a related issue that defendant raises.

260 	Snider v. Production Chemical Manufacturing, Inc.
plaintiff to submit their dispute to arbitration. Plaintiff
refused and, on October 12, defendant filed a petition to com-
pel arbitration. Defendant's petition came approximately
eight months after plaintiff had filed his complaint and
approximately five weeks before the rescheduled trial date.
At no point before October 7 had defendant invoked its right
to arbitration under the employment agreement.
The trial court denied defendant's petition, reason-
ing that defendant had unduly delayed in seeking arbitration
and thus waived its right to arbitrate the parties' dispute.
The court entered an order denying the petition on December 23,
2005, and the case proceeded to trial on January 17, 2006.
The jury returned a verdict for plaintiff. The trial court
entered a general judgment in plaintiffs favor on February 13,
2006. Defendant filed a timely notice of appeal from the gen-
eral judgment and, in its opening brief on appeal, assigned
error to the trial court's order denying its petition to compel
arbitration. Plaintiff responded that defendant had to file an
interlocutory appeal pursuant to ORS 36.730 if it wanted to
challenge that order. 	Plaintiff argued alternatively that
defendant's delay in requesting arbitration waived whatever
right it had to arbitrate their dispute.
In resolving defendant's assignment of error, the
Court of Appeals ruled initially that ORS 36. 730 applied to
the parties' arbitration agreement. Snider, 221 Or App at
598. 2 The court then ruled that an interlocutory appeal pur-
suant to ORS 36. 730 provided the exclusive means for
appealing from a trial court order denying a petition to com-
pel arbitration. Id. at 600. It followed, the court concluded,
that it lacked jurisdiction to consider defendant's assignment
of error. Id. On review, defendant challenges both rulings.
We begin with defendant's argument that ORS 36.730 does
not apply to this litigation before turning to the question
ORS 36. 730 provides, in part:
"(l) An appeal may be taken from:
"(a) An order denying a petition to compel arbitration.
"(b) An order granting a petition to stay arbitration.
"* * * * *
"(2) An appeal under this section must be taken as provided in ORS chap-
ter 19."

Cite as 348 Or 	261
whether an interlocutory appeal pursuant to that statute
provided the exclusive means for appealing from an order
denying a petition to compel arbitration.
In 2003, the Oregon legislature adopted the Revised
Uniform Arbitration Act. Or Laws 2003, ch 598. Much of that
act provides procedures for initiating and conducting arbitra-
tion proceedings. See Or Laws 2003, ch 598, §§ 9, 11, 15 (pro-
viding procedures for initiating arbitration, appointing arbi-
trators, and conducting the hearing). Section 28 of that act,
now codified as ORS 36.730, provides that a party may
appeal from an interlocutory order denying a petition to com-
pel arbitration and an interlocutory order staying arbitra-
tion. Or Laws 2003, ch 598, § 28. Sections 3 and 31 of that act
specify the agreements to which sections 1 to 30 of the act
apply. Or Laws 2003, ch 598, §§ 3, 31.
Defendant argues that sections 3 and 31 of the 2003
arbitration act establish that that act (more specifically, sec-
tion 28 of that act) does not apply to this litigation. Defendant
reasons that, because section 28 of that act (codified as ORS
36.730) does not apply to this litigation, it could not have
taken an interlocutory appeal from the trial court's order
denying its motion to compel arbitration. 3 It follows, defen-
dant contends, that we need not decide whether, if ORS
36. 730 applied, that statute would have provided the exclu-
sive means for appealing from the trial court's order. In ana-
lyzing defendant's argument, we begin with section 3 and
then turn to section 31.
Section 3 of the 2003 arbitration act specifies which
arbitration agreements are subject to the act. It provides:
" The parties' agreement provides that "[a]rbitration shall comply with and be
governed by the provisions of the California Arbitration Act." It may be that, under
the parties' choice-of-law provision, the California Arbitration Act, not Oregon's
2003 arbitration act, would govern the procedures by which any arbitration
between them would be conducted. It does not follow, however, that California law
also governs the procedures for taking an appeal from an Oregon circuit court's rul-
ing, nor have the parties argued that it would. See Equita.ble Life Assurance v.
McKay, 306 Or 493, 760 P2d 871 (1988) (recognizing that, even when foreign law
applies, the law of the forum will govern judicial procedures). Rather, both parties'
arguments on this point start from the proposition that Oregon law applies.

262 	Snider v. Production Chemical Manufacturing, Inc.
"(1) 	Sections 1 to 30 of this 2003 Act govern an agree-
ment to arbitrate made on or after the effective date of this
2003 Act [January 1, 2004].
"(2) 	Sections 1 to 30 of this 2003 Act govern an agree-
ment to arbitrate made before the effective date of this 2003
Act if all the parties to the agreement or to the arbitration
proceeding so agree in a record.
"(3) 	On or after September 1, 2004, sections 1 to 30 of
this 2003 Act govern an agreement to arbitrate whenever
made."
Or Laws 2003, ch 598, § 3. Section 3 divides arbitration
agreements into two categories. The first category consists of
arbitration agreements made after the effective date of the
act, January 1, 2004. The 2003 arbitration act governs all
those agreements. Or Laws 2003, ch 598, § 3(1). The second
category consists of arbitration agreements made before the
effective date of the 2003 arbitration act and divides into two
subcategories. Between January 1 and August 31, 2004, the
2003 arbitration act will not govern arbitration agreements
made before the act's effective date, unless the parties agree
that the act applies. Or Laws 2003, ch 598, § 3(2). Beginning
on September 1, 2004, the 2003 arbitration act will govern all
arbitration agreements, including those made before the act's
effective date. Or Laws 2003, ch 598, § 3(3).
In this case, the parties renewed their employment
agreement, which included an agreement to arbitrate, before
January 1, 2004. Section 3(1) accordingly does not apply;
either section 3(2) or section 3(3) does. Defendant did not dis-
charge plaintiff until 2005. Because the opportunity to arbi-
trate any dispute arising out of plaintiff's discharge did not
arise until after September 1, 2004, section 3(3) of the 2003
arbitration act applies and provides that sections 1 to 30 of
the act, including the section now codified as ORS 36. 730,
apply.
The remaining question is whether the savings
clause in section 31 of the act leads to a different conclusion.
Section 31 provides:
"Sections 1 to 30 of this 2003 Act do not affect an action
or proceeding commenced or right accrued before the effec-
tive date of this 2003 Act. Subject to section 3 of this 2003

Cite as 348
Act, an arbitration agreement made before the effective
date of this 2003 Act, continues to be governed by f!ormer]
ORS 36.300 to 36.365 [(2001)] as though those sections
were not repealed by section 5[7] of this 2003 Act."
Defendant raises two arguments under that section. Defen-
dant argues initially that, under the second sentence of sec-
tion 31, the former arbitration statutes (former ORS 36.300
to 36.365 (2001)) apply to its dispute with plaintiff. The sec-
ond sentence, however, begins with the phrase, "[s]ubject to
section 3." That introductory phrase makes clear that the for-
mer arbitration statutes will govern agreements to arbitrate
made before January 1, 2004, but will do so only until August 31,
2004, and only if the parties do not agree that the 2003 arbi-
tration act applies. See Or Laws 2003, ch 598, § 3(2) (so pro-
viding). Beginning on September 1, 2004, the 2003 arbitra-
tion act governs all agreements to arbitrate without regard to
when they were made. See Or Laws 2003, ch 598, § 3(3).
Defendant also relies on the first sentence of section
31, which provides that sections 1 to 30 of the 2003 arbitra-
tion act "do not affect an action or proceeding commenced or
right accrued before [January 1, 2004]." In this case, no
action or proceeding was commenced before January 1, 2004;
so, that part of the first sentence does not advance defen-
dant's position. Additionally, defendant has identified no
right that accrued to it before January 1, 2004. Defendant did
not file a petition to compel arbitration until October 2005,
and the trial court did not deny defendant's petition until
December 2005. Defendant's right to appeal did not arise (or
"accrue" in statutory terms) until long after the effective date
of the 2003 arbitration act.
Defendant argues, however, that some of plaintiff's
rights accrued before January 1, 2004, and that, as a result,
the former arbitration statutes apply. 	Plaintiff has not
invoked the savings clause of the 2003 arbitration act, and we
fail to see how defendant can invoke the savings clause to
protect plaintiff's accrued rights when plaintiff declines to do
so. We accordingly conclude that, under sections 3 and 31 of
the 2003 arbitration act, section 28 of that act (now codified
as ORS 36. 730) applied and authorized defendant to take an
interlocutory appeal from the trial court's order.

264 	Snider v. Production Chemical Manufacturing, Inc.
Having 	concluded 	that 	ORS 	36. 730 	authorized
defendant to take an interlocutory appeal, we turn to the
question whether that statute provides the exclusive means
for appealing from an order denying a petition to compel arbi-
tration. In answering that question, we think it is helpful ini-
tially to put ORS 36. 730 in its historical context. Before 2003,
the Oregon statutes did not authorize a party to take an
interlocutory appeal as a matter of right from an order deny-
ing a petition to compel arbitration. See Bush u. Paragon
Property, Inc., 165 Or App 700, 702, 997 P2d 882 (2000) (so
concluding). Appellate review of an order denying a petition
to compel arbitration was available as a matter of right only
on appeal from the general judgment at the end of the trial.
See lndustra/ Matrix ,Joint Venture v. Pope & Talbot, 341 Or
321, 327-28, 142 P3d 1044 (2006) (reviewing trial court's
order denying a petition to compel arbitration on appeal from
the generaljudgment). 4
Specifically, before 2003, a timely appeal from a final
judgment gave an appellate court jurisdiction of the cause.
ORS 19.205(1) (2001) (authorizing an appeal from a judg-
ment); ORS 19.270(1) (providing that an appellate court will
have jurisdiction of the cause when a timely notice of appeal
is filed and served properly). Having acquiredjurisdiction, an
appellate court could "review any intermediate order involv-
ing the merits or necessarily affecting the judgment * * *
appealed from." ORS 19.425 (2001). Although the issue was
not litigated inlndustra/ Matrix Joint Venture, that was pre-
sumably the basis on which the Court of Appeals and this
court reviewed the trial court's order denying the plaintiff's
petition to compel arbitration in that case; that is, the Court
of Appeals and this court had authority to review the order in
Industra/ Matrix Joint Venture because it was "an interme-
diate order * * * [that] necessarily affect[ed] the judgment
appealed from." See ORS 19.425 (authorizing review of inter-
mediate orders).
When the plaintiff filed the action in lndustra I Matrix Joint Venture, the
2001 version of the Oregon Arbitration Act was in effect and continued to apply to
that action because of the savings provision in section 31 of the 2003 arbitration
act. See 341 Or at 326 n 2 (so stating).

Cite as 348 Or 257 	265
In 2003, the Oregon legislature provided for the first
time that "[a]n appeal may be taken from [a]n order denying
a petition to compel arbitration." Or Laws 2003, ch 598, § 28.
The legislature, however, did not specify what consequences
would follow from declining to take an interlocutory appeal.
Specifically, the legislature did not expressly state whether
the failure to take an interlocutory appeal pursuant to ORS
36. 730 would preclude a party from later appealing from the
general judgment and assigning error, as part of that appeal,
to the trial court's order.
In addressing that issue, defendant argues that the
legislature's use of the word "may'' implies permission to take
an appeal and that, without some clear evidence of a contrary
legislative intent, we should not assume that the legislature
intended to require parties to pursue what is phrased only as
a permissive appeal. Plaintiff, for his part, responds that an
order denying a petition to compel arbitration must be
appealed within 30 days and that, after the passage of ORS
36. 730, an order denying a petition to compel arbitration is
not an "intermediate order" within the meaning of ORS
19.425. Implicit in plaintiffs argument is the proposition that
there would have been little reason for the legislature to per-
mit an interlocutory appeal as a matter of right if it did not
intend to require that the question of arbitrability be finally
resolved before the parties went to the expense and effort of a
trial.
It is true, as defendant argues, that the phrase "may
be taken" is permissive, but the legislature could have used
that phrase in one of two ways. On the one hand, the legisla-
ture could have used "may," as defendant argues, to signal its
intent to permit an interlocutory appeal without forclosing a
party's right to raise the issue on a later appeal from a gen-
eral judgment. See Salsitz v. Kreiss, 198 Ill 2d 1, 761 NE2d
724 (2001) (interpreting "may" that way). On the other hand,
the legislature could have used "may'' merely to signal that it
did not intend to require an appeal from an order denying a
petition to compel arbitration; that is, a party may but need
not appeal from such an order. See ORS 19.205(1) (a "general
judgment * * * may be appealed as provided in this chapter").
Put differently, providing that an interlocutory appeal "may
be taken" does not reveal the consequences of failing to do so.

266 	Snider v. Production Chemical Manufacturing, Inc.
The Court of Appeals found more guidance in the
text of ORS 36.730(2). Snider, 221 Or App at 600. That sub-
section provides that "[a]n appeal under this section must be
taken as provided in ORS chapter 19." That means, among
other things, that a notice of appeal pursuant to ORS 36. 730
must be filed within 30 days of the date that an order denying
a petition to compel arbitration is entered in the register. See
ORS 19.255(1) (stating the time for filing a notice of appeal).
ORS 36.730(2) makes clear that the time to take an interloc-
utory appeal pursuant to ORS 36.730 is limited. Defendant's
position is at odds with that time limitation. If a party were
free to wait until the entry of the general judgment to chal-
lenge an order denying a petition to compel arbitration, as
defendant argues, it would undercut the legislature's direc-
tive that an appeal from that order must be taken within
30 days.
Another aspect of the text points in the same direc-
tion. ORS 36. 730 authorizes an appeal from two interlocutory
orders: an order denying a petition to compel arbitration and
an order granting a petition to stay arbitration. It does not
authorize an appeal from an interlocutory order granting a
petition to compel arbitration or an interlocutory order stay-
ing a trial pending arbitration. Textually, ORS 36.730 is a
one-way street. It authorizes an interlocutory appeal if a trial
court rejects arbitration in favor of trial, but it does not
authorize an interlocutory appeal if a trial court sends the
case to arbitration instead of trial. We infer from that choice
that the legislature wanted to have the issue of arbitrability
be decided quickly and finally before the parties went to the
expense and effort of trying their case in court. There would
be little point in waiting until the trial was over before find-
ing out that the case should have been arbitrated rather than
tried.
Defendant does not identify any context that sup-
ports its position, other than the general right to appeal from
the judgment, which we have already considered, and there
is no legislative history that bears on this issue. See State v.
Gaines, 346 Or 160, 172, 206 P3d 1042 (2009) ("Legislative
history may be used to confirm seemingly plain meaning and
even to illuminate it * * *."). As noted, the 2003 legislature
enacted what is now codified as ORS 36.730 as part of a

Cite as 348 Or 257 	267
larger bill adopting the Revised Uniform Arbitration Act. See
Or Laws 2003, ch 598, § 28. The Oregon State Bar sponsored
that bill. See Testimony, House Judiciary Committee, HB
2279, Jan 30, 2003, Ex B (statement of James Damis). In dis-
cussing the need for the bill, a representative from the Bar
explained that the bill, modeled on the Revised Uniform
Arbitration Act, was necessary to modernize Oregon's arbi-
tration procedures. 5 Id.
In discussing the bill, no one mentioned that, in
adopting the Revised Uniform Arbitration Act, the legisla-
ture would authorize an interlocutory appeal as a matter of
right, nor was there any discussion of what the consequences
would be if a party failed to take an interlocutory appeal pur-
suant to the bill. Not only was there no discussion of that
issue in the legislative history, but there is no commentary to
that section of the Revised Uniform Arbitration Act that
might shed light on what the legislature intended. Cf Datt v.
Hill, 347 Or 672, 682, 227 P3d 714 (2010) (looking to the com-
mentary to another uniform act that Oregon had adopted to
determine the Oregon legislature's intent).
Considering the text and context of ORS 36.730, we
hold that the legislature intended that ORS 36. 730 would
provide the exclusive means for appealing from an order
denying a 	petition to compel 	arbitration. 	The 	Court of
Appeals reached the same conclusion but reasoned that, as a
result of ORS 36.730, it lacked jurisdiction to consider defen-
dant's assignment of error. Snider, 221 Or App at 600. In our
view, defendant's failure to take an interlocutory appeal did
not deprive the Court of Appeals of jurisdiction to consider
defendant's assignment of error. Rather, defendant's timely
appeal from the general judgment gave the Court of Appeals
jurisdiction "of the cause," which included all requests for
relief incorporated in the general judgment. See ORS 19.270
(defining appellate jurisdiction); ORS 18.005(7) (defining
general judgment). Under ORS 36. 730, defendant's failure to
take an interlocutory appeal from the trial court's order
5 The Oregon legislature had adopted the previous arbitration provisions in
1925. Peter Kiewit v. Port of Portland, 291 Or 49, 54, 628 P2d 720 (1981). It did not
adopt the Uniform Arbitration Act, which the Commissioners on Uniform State
Laws had promulgated in 1955. Id. at 56.

268 	Snider v. Production Chemical Manufacturing, Inc.
meant that the order was not reviewable on appeal. In effect,
ORS 36.730 reflects the legislature's intent to remove orders
denying petitions to compel arbitration from the category of
intermediate orders that otherwise would be reviewable on
appeal from the general judgment.
Although we view the effect of ORS 36.730 differ-
ently from the Court of Appeals, we agree that defendant's
challenge to the trial court's order was not properly before
that court on appeal from the general judgment. Accordingly,
we do not reach the question whether the trial court correctly
held that defendant's delay in invoking the arbitration pro-
visions in its agreement waived its right to arbitrate.
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.