S054437, Opinion — Peeples v. Lampert

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Argued and submitted September 5, 2007, decision of Court of Appeals and
judgment of circuit court affirmed August 14, 2008
JASON J. PEEPLES,
Petitioner on Review,
v.
Robert LAMPERT,
Superintendent,
Snake River Correctional Institution,
Respondent on Review.
(CC 02011658M, CA A122837 (Control))
JASON J. PEEPLES,
Petitioner on Review,
v.
Brian BELLEQUE,
Superintendent,
Oregon State Penitentiary,
Respondent on Review.
(CC03C-21423; CA A125027; SC S054437)
191 P3d 637

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CJS, Criminal Law § 1682.

En Banc

On review from the Court of Appeals .*

Patrick M. Ebbett, Chilton, Ebbett & Galli, LLC,
Portland, argued the cause and filed the briefs for petitioner
on review.

Robert M. Atkinson, Assistant Attorney General, Salem,
argued the cause for respondents on review. With him on the
brief were Hardy Myers, Attorney General, and Mary H.
Williams, Solicitor General.

Walter J. Ledesma, Woodburn, filed a brief on behalf of
amicus curiae Oregon Trial Lawyers Association.

LINDER, J.

The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.

Durham, J., concurred and filed an opinion in which
Gillette, J., joined.

\* Appeal from Marion County Circuit Court, Malheur County Circuit Court,
Joseph P. Ochoa, Judge, James R. Hargraves, Senior Judge. 209 Or App 17, 146
P3d 352 (2006).

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# LINDER, J.

In this post-conviction case, the trial court dismissed
the petition for relief as a sanction for petitioner's refusal to
participate in a scheduled deposition. On appeal, petitioner
argued that the trial court erred by failing to make special
findings to support the dismissal, as required by Pamplin v.
Victoria, 319 Or 429, 877 P2d 1196 (1994). A panel of the
Court of Appeals divided on whether that challenge must be
preserved to be raised on appeal. Peeples v. Lampert, 209 Or
App 17, 25-26, 146 P3d 352 (2006) (preservation rules apply);
id. at 29-30 (Ortega, J., dissenting) (under Pamplin, no
request for special findings is required). Petitioner sought
review, which we allowed. We now hold that a challenge to a
trial court's failure to make the special findings required by
Pamplin is subject to preservation rules. Because petitioner
did not preserve that challenge in this case, we affirm.

The pertinent facts are procedural in nature. After
pleading guilty to two criminal offenses, petitioner filed a
first pro se petition for post-conviction relief in Malheur
County. An attorney was appointed to represent him, and
that attorney, about nine months after the original petition
was filed, filed an amended petition for post-conviction relief.
Trial then was scheduled for a year after that. On the day of
trial, petitioner asked to amend his petition, to have a new
attorney appointed to represent him, and to have the case
continued for further investigation. The post-conviction court
denied those requests. When petitioner refused to proceed,
the court dismissed the case without prejudice.

About two months after that dismissal, petitioner
filed a second pro se petition for post-conviction relief, this
time in Marion County. An attorney was again appointed to
represent him, and that attorney filed an amended petition.
Petitioner expressed concerns to his counsel about allega-
tions that were in his original pro se petition but were not
included in the amended petition. His counsel, after corre-
sponding with petitioner, decided not to restore any of those
allegations. Meanwhile, the state scheduled petitioner's dep-
osition.1 Although petitioner and his counsel came to the

1 When a petitioner seeking post-conviction relief is imprisoned in a state insti-
tution, as is petitioner in this case, the defendant in the proceeding is the state

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scheduled deposition, petitioner refused to be deposed, claim-
ing that he was not ready to proceed. The state moved to dis-
miss the petition as a sanction for petitioner's refusal. See
ORCP 46 D (authorizing sanctions for party's failure to
appear at own deposition); ORCP 46 B (enumerating possible
sanctions, including "an order * * * dismissing the action").
Alternatively, the state asked that petitioner be required to
pay all costs that the state had incurred due to petitioner's
refusal to be deposed.

Both parties submitted affidavits and other evidence
in the hearing on the state's motion to dismiss. Counsel for
the state, who also had represented the state in the Malheur
County action, by affidavit described petitioner's unwilling-
ness in that case to proceed and his day-of-trial efforts to
amend his petition, which had been previously amended and
had been awaiting trial for a year. The state took the position
that petitioner's refusal to be deposed in the Marion County
action was unreasonable and that petitioner was delaying
that proceeding in the same way that he had delayed the
Malheur County proceeding.

In opposition to the motion to dismiss, petitioner dis-
puted that he had refused to be deposed. In the written mem-
orandum opposing dismissal, petitioner's counsel urged that,
even if the post-conviction court found that petitioner had
refused to be deposed, dismissal as a sanction was not war-
ranted. As an alternative, he suggested that petitioner be
required to pay only the cost of the three-page transcript of
the terminated deposition. Petitioner's written opposition
was supported by an affidavit from his counsel representing
that, on the day of the deposition, petitioner had clarified his
objections to the amended petition for post-conviction relief,
which caused counsel to reconsider a possible amendment to
the petition. Petitioner's counsel asserted that petitioner had
wanted the deposition postponed.

At the hearing on the motion, petitioner likewise
told the court that he wanted to get his petition amended,
and was not refusing to be deposed. In particular, petitioner

official charged with the petitioner's confinement. ORS 138.570. For ease of refer-
ence and clarity, we refer to the defendants in petitioner's Malheur County and
Marion County proceedings as "the state."

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personally represented to the post-conviction court that, at
the time of the scheduled deposition, he had "no problem
being deposed" and that, if the state's attorney had deposed
him at that time, he would have cooperated. The transcript of
the terminated deposition, however, was also before the post-
conviction court. In it, petitioner had affirmatively confirmed
his attorney's representation that petitioner was not ready to
be deposed and that he wanted the deposition rescheduled for
another time. Petitioner's counsel acknowledged to the post-
conviction court that petitioner's dissatisfaction with the
claims pleaded in the amended petition might "sound famil-
iar, given the prior proceeding [in Malheur County]." Neither
counsel nor petitioner identified what claims or allegations
might be added to the amended petition.

The post-conviction court dismissed the petition
with prejudice. At the conclusion of the hearing, the court
orally observed that petitioner had many opportunities, dur-
ing the two years after filing his first post-conviction petition
in Malheur County, to amend his petition. The court con-
cluded that petitioner was unwilling to participate and was
"wast[ing]" the court's time. The court directed the state to
prepare the judgment dismissing the action. In that judg-
ment, the court made the following findings:

"The court finds that plaintiff's post-conviction claims
were originally filed in Malheur County, Oregon[,] [o]n
September 23, 2002. [That] petition was dismissed without
prejudice on September 23, 2003[,] in Malheur County,
Oregon, because plaintiff refused to proceed at the date set
for his trial. Plaintiff apparently was not satisfied with the
claims set forth in his amended petition.

"Plaintiff then filed this petition for post conviction
relief on November 4, 2003. An amended petition was filed
on February 23, 2004.

"On May 7, 2004, plaintiff again expressed that [he] was
not satisfied with the claims set forth in his amended peti-
tion, and refused to participate in his deposition.

"Plaintiff has delayed his own post conviction proceed-
ings for almost two years. Plaintiff had knowledge that
refusal to participate in court proceedings could result in
dismissal of his case. Plaintiff chose not to participate in his
deposition.

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"For these reasons and those set forth by the defendant,
defendant's Motion to Dismiss for Lack of Prosecution is
allowed. Because of plaintiff's history of delay in this matter
and the same underlying matter in the Malheur County
Circuit Court, the Petition for Post Conviction Relief is dis-
missed with prejudice."

By way of footnote, the post-conviction court explained why it
found that petitioner "chose not to participate in his
deposition":

"While [petitioner] stated at this hearing that he did not
refuse, the transcript, plaintiff's attorney's statement, and
plaintiff's past history show that treating his request for
further delay as a refusal is not unreasonable, and well-
founded under the circumstances."

On appeal to the Court of Appeals, petitioner argued
that, procedurally, the post-conviction court had failed to
make the findings that Pamplin identified as necessary for
meaningful appellate review. In particular, petitioner con-
tended that the post-conviction court was required to explain
expressly why lesser sanctions were not appropriate. As
noted earlier, the Court of Appeals panel divided on whether
petitioner had to preserve that issue. Two members of the
three-judge panel concluded that he was required to do so;
one judge would have held that preservation rules did not
apply to the findings required by Pamplin. Peeples, 209 Or
App at 23-26 (majority); id. at 27-30 (Ortega, J., dissenting).
We allowed review to resolve that issue.

We begin by examining the legal authority for the
post-conviction court's dismissal of the petition for post-
conviction relief and the court's obligation to make findings
in support of that action. Under ORCP 46 D, if a party fails to
cooperate in a properly scheduled deposition, a trial court
may sanction the party by "mak[ing] such orders in regard to
the failure as are just[.]"2 Among the orders that the rule spe-
cifically authorizes is dismissal of the action, pursuant to

2 ORCP 46 D provides, in part:

"If a party * * * fails * * * to appear before the officer who is to take the dep-
osition of that party * * * , after being served with a proper notice, * * * the
court in which the action is pending on motion may make such orders in regard
to the failure as are just, including among others it may take any action
authorized under subsection B(2)(a), (b), and (c) of this rule. In lieu of any order
or in addition thereto, the court shall require the party failing to act or the

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ORCP 46 B(2)(c).3 In Pamplin, this court held that, for dis-
missal under ORCP 46 B(2)(c) to be "just," an uncooperative
party must act with "willfulness, bad faith, or fault of a simi-
lar degree on the part of the disobedient party." 319 Or at
434. This court further held that, to support a sanction of dis-
missal, a trial court must make specific findings resolving
any factual disputes and explaining why such a sanction is
warranted. Id. at 436-37.4

In so holding, this court determined that dismissal
as a sanction under ORCP 46 B(2)(c) is analogous to award-
ing attorney fees as a sanction under ORS 20.105(1). 319 Or
at 436. Pursuant to that statute, a trial court has discretion
to impose such fees in appropriate circumstances in civil pro-
ceedings. The statute does not expressly require a court to
make special findings in support of the award.5 Nevertheless,
in Mattiza v. Foster, 311 Or 1, 10, 803 P2d 723 (1990), this
court held that a court must make such findings, reasoning
that they are necessary for meaningful appellate review of an

attorney advising such party or both to pay the reasonable expenses, including
attorney's fees, caused by the failure, unless the court finds that the failure
was substantially justified or that other circumstances make an award of
expenses unjust."

3 In particular, ORCP 46 D specifically cross-references the "action[s] author-
ized under subsection B(2)(a), (b), and (c)," which are:

"B(2)(a) An order that the matters regarding which the order was made or
any other designated facts shall be taken to be established for the purposes of
the action in accordance with the claim of the party obtaining the order;

"B(2)(b) An order refusing to allow the disobedient party to support or
oppose designated claims or defenses, or prohibiting the disobedient party
from introducing designated matters in evidence; [or]

"B(2)(c) An order striking out pleadings or parts thereof, or staying fur-
ther proceedings until the order is obeyed, or dismissing the action or any part
thereof, or rendering a judgment by default against the disobedient party[.]"

4 Pamplin arose under ORCP 46 B, which addresses a trial court's authority to
sanction noncompliance with a discovery order. This case arises under ORCP 46 D,
which controls the court's authority to sanction noncooperation with a scheduled
deposition. The operative wording of the two provisions is the same, however. In
both circumstances, the court may "make such orders in regard to the failure as are
just" and specifically may dismiss the action pursuant to ORCP 46 B(2)(c). Given
those parallels, Pamplin's rationale applies equally to a trial court's dismissal
authority under ORCP 46 D. Neither party, we note, urges us to hold otherwise.

5 When this court decided Pamplin, ORS 20.105(1) gave trial and appellate
courts authority, in civil proceedings, to award reasonable attorney fees against a
party who has " 'willfully disobeyed a court order or acted in bad faith, wantonly, or
solely for oppressive reasons.' " 319 Or at 436 n 4 (quoting statute).

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award under ORS 20.105(1). Pamplin relied on Mattiza in
concluding that special findings likewise should be necessary
when a trial court dismisses an action under ORCP 46
B(2)(c):

"Here, as in Mattiza, the sanction of dismissal under ORCP
46 B(2)(c) is a situation in which special findings are a pre-
requisite to meaningful review by an appellate court. As
discussed above, that sanction is appropriate only when it
is just' and only when there is willfulness, bad faith, or
other fault of like magnitude by the disobedient party. To
assess the propriety of imposing that sanction, an appellate
court needs to know (1) the historical facts on which the
trial court based its decision to impose it and (2) the analyt-
ical process by which the trial court concluded that dis-
missal is just' in view of those facts and in view of the other
sanctions that are available. The present case provides a
classic example of the difficulty of meaningful appellate
review, because of the unresolved factual questions in the
record."

319 Or at 436-37 (internal quotation marks omitted; citation
omitted).

In this case, in opposing the state's motion to dis-
miss, petitioner disputed whether he in fact had refused to be
deposed. He also disputed whether dismissal was an appro-
priate sanction for his conduct. In the written judgment, the
post-conviction court set forth an explanation, together with
findings, for its dismissal of the action. The court found that
petitioner had refused to be deposed, thus resolving that fac-
tual dispute. The court further found that petitioner did so
with knowledge that his refusal to proceed could result in a
dismissal, as it had in Malheur County; that petitioner had
delayed his post-conviction proceeding for almost two years;
and that dismissal with prejudice was appropriate because of
petitioner's "history of delay in this matter and the same
underlying matter in * * * Malheur County[.]" The post-
conviction court did not, however, explain-at least not
explicitly-why dismissal, rather than a lesser sanction, was
appropriate in those circumstances.

On appeal, petitioner assigned error not only to the
post-conviction court's substantive decision to dismiss, but

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also to the court's procedural failure to make an express spe-
cial finding that dismissal was more appropriate than a
lesser sanction. Petitioner raised that claim of error on
appeal even though he had not argued to the post-conviction
court that it was obligated to make an explicit finding in that
regard. Nor had he argued that the findings that the post-
conviction court did make were otherwise inadequate. Peti-
tioner did not present those concerns to the post-conviction
court, even though-as we describe in greater detail later in
this opinion-he had an opportunity to do so.

Thus, petitioner preserved whether, as a substantive
matter, a sanction of dismissal was warranted, but he did not
preserve his argument that the post-conviction court was
obligated, as a procedural matter, to make additional or more
specific findings than it made in explaining its ruling. Peti-
tioner's failure to preserve that procedural issue is undis-
puted. What is disputed is whether rules of preservation
should apply to a claim that the trial court failed to make spe-
cial findings as required by Pamplin.

Preservation was not an issue in Pamplin. Nor was
it an issue in Mattiza, on which Pamplin relied.6 In conclud-
ing that ordinary rules of preservation should apply to such a
challenge, the Court of Appeals' majority examined the policy
reasons that underlie preservation rules and determined, in
essence, that those policies would be ill-served if a party has
no obligation to object to a failure to make findings that the
party believes are necessary to support dismissal. Peeples,
209 Or App at 24-26. In reaching the opposite conclusion, the
dissent viewed it as inconsistent with Pamplin to require
petitioner to request special findings to ensure meaningful
review of his substantive challenge, given that he had other-
wise preserved that challenge by arguing that a lesser sanc-
tion should be imposed. Id. at 30 (Ortega, J., dissenting). On

6 The concurrence asserts that preservation was raised in the briefing in
Pamplin. 345 Or at 232 (Durham, J., concurring). We disagree. The defendant in
Pamplin summarily argued that a court is under no legal obligation to make spe-
cial findings, except pursuant to the procedures set forth in ORCP 62, which the
plaintiff had not followed. Plaintiff responded only by urging that ORCP 62 applied
to bench trials only and therefore was inapplicable in that case. The parties' dis-
pute thus was over the existence of a legal obligation to make findings; neither
party framed the point as a disagreement over the applicability of preservation
rules for purposes of appellate review.

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review, the parties' arguments to this court similarly reflect
competing views of how to reconcile the policies favoring
preservation with Pamplin's requirement of express special
findings as a way to facilitate meaningful review of a dis-
missal under ORCP 46 B(2)(c). We turn to that inquiry.

The general requirement that an issue, to be raised
and considered on appeal, ordinarily must first be presented
to the trial court is well-settled in our jurisprudence. See, e.g.,
State v. Laundy, 103 Or 443, 509-10, 206 P 290 (1922) (iden-
tifying preservation rule; citing earlier cases). For some
years, the requirement also has been part of Oregon's Rules
of Appellate Procedure, which provide that "[n]o matter
claimed as error will be considered on appeal unless the
claimed error was preserved in the lower court[.]" ORAP
5.45(1). The principal exception to preservation require-
ments is for so-called "plain error"-that is, an error appar-
ent on the record, about which there is no reasonable dispute.
See, e.g., State v. Brown, 310 Or 347, 355-56, 800 P2d 259
(1990) (describing plain error). An appellate court has discre-
tion to consider such an error, but it must do so with the
"utmost caution," because of the strong policy reasons favor-
ing preservation. Ailes v. Portland Meadows, Inc., 312 Or
376, 382, 823 P2d 956 (1991) (identifying procedure and
bases for consideration of plain error).

Those policies are prudential in nature. Preservation
gives a trial court the chance to consider and rule on a conten-
tion, thereby possibly avoiding an error altogether or correct-
ing one already made, which in turn may obviate the need for
an appeal. See Shields v. Campbell, 277 Or 71, 77, 559 P2d
1275 (1977) ("A party owes the trial court the obligation of a
sound, clear and articulate motion, objection or exception, so
as to permit the trial judge a chance to consider the legal con-
tention or to correct an error already made."). Preservation
also ensures fairness to an opposing party, by permitting the
opposing party to respond to a contention and by otherwise
not taking the opposing party by surprise. Davis v. O'Brien,
320 Or 729, 737-38, 891 P2d 1307 (1995) (preservation
ensures that "the positions of the parties are presented
clearly to the initial tribunal and that parties are not taken
by surprise, misled, or denied opportunities to meet an argu-
ment"). Finally, preservation fosters full development of the

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record, which aids the trial court in making a decision and
the appellate court in reviewing it. See Outdoor Media
Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60, 20
P3d 180 (2001) (to promote judicial efficiency, unpreserved
alternative ground for affirmance may be raised on appeal
when, among other considerations, record has been fully
developed). Our jurisprudence, thus, has embraced the pres-
ervation requirement, "[not] to promote form over substance
but to promote an efficient administration of justice and the
saving of judicial time." Shields, 277 Or at 77-78.

Preservation rules are pragmatic as well as pruden-
tial. What is required of a party to adequately present a con-
tention to the trial court can vary depending on the nature of
the claim or argument; the touchstone in that regard, ulti-
mately, is procedural fairness to the parties and to the trial
court. See generally State v. Hitz, 307 Or 183, 188, 766 P2d
373 (1988) (distinguishing requirements for "raising an issue
at trial, identifying a source for a claimed position, and mak-
ing a particular argument"). In some circumstances, the pres-
ervation requirement gives way entirely, as when a party has
no practical ability to raise an issue. See, e.g., McCarthy v.
Oregon Freeze Dry, Inc., 327 Or 84, 95 n 6, 957 P2d 1200,
modified on recons, 327 Or 185, 957 P2d 1200 (1998) (party
not required to take action to preserve an issue that first
arose when court issued its order).7 The same is true if the
record establishes that preservation would have been futile,
because the trial court would not have permitted an issue to
be raised or the record to be developed. See, e.g., State v.
Olmstead, 310 Or 455, 461, 800 P2d 277 (1990) ("When the
trial court excludes an entire class of evidence by declaring,
in advance, that it is inadmissible as a matter of law, the rul-
ing renders a further offer futile."). Finally, a legal right may
not be subject to preservation requirements due to the
unique nature of the right itself. See, e.g., State v. Barber, 343

7 The circumstances presented in State v. DeCamp, 158 Or App 238, 241, 973
P2d 922 (1999) provide another example of when preservation can be a practical
impossibility. There, the trial court modified a criminal defendant's sentence with-
out giving either party notice and without a hearing in which the parties were pres-
ent. The Court of Appeals held that, under those circumstances, the defendant
could challenge the modification on appeal without first preserving the issue before
the trial court.

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Or 525, 530, 173 P3d 827 (2007) (unique wording of consti-
tutional requirement of written jury trial waiver precluded
ordinary rules of preservation for claim relating to denial of
jury trial right).

We have not, however, foregone preservation
requirements in contexts involving mandatory trial court
findings. In State v. Bucholz, 317 Or 309, 855 P2d 1100
(1993), this court required preservation of a claim that a trial
court had erred in failing to make special findings. In that
case, the defendant challenged the trial court's failure to
make express findings in imposing consecutive sentences on
his convictions. Without deciding whether the trial court had
a statutory obligation to make such findings,8 this court
declined to reach the issue for lack of preservation, reasoning
that the defendant was aware that the sentences were being
imposed consecutively, but he neither objected to the lack of
findings nor requested findings to be made. Id. at 320. Citing
ORAP 5.45(2), this court declared that "silence provides no
basis for considering a claim of error on later appeal" and
observed that the defendant sought relief on appeal for an
error that, had it been brought to the trial court's attention,
could easily have been remedied. Id. at 320-21.9

Similarly, in McCarthy, which was decided after
Matizza, this court assumed that preservation requirements
apply to the special findings that a court must make in

8 The issue arose under ORS 137.123(4) (1989) (currently ORS 137.123(5)),
which gives a trial court "discretion to impose consecutive terms of imprisonment
for separate convictions arising out of a continuous and uninterrupted course of
conduct only if the court finds" certain facts prescribed by the statute. The Court of
Appeals previously had held that, to satisfy the statute, a trial court must
expressly make special findings at the time the consecutive sentences are imposed
pursuant to that statute. State v. Racicot, 106 Or App 557, 809 P2d 726 (1991).

9 Petitioner attempts to distinguish Bucholz, urging that the statutory find-
ings involved in that case did not "implicate" an appellate court's ability to mean-
ingfully review the sentence imposed. As we have observed, however, express trial
court findings are always helpful to appellate review. See, e.g., State v. Hart, 329 Or
140, 148, 985 P2d 1260 (1999) (trial courts are encouraged to state findings on the
record, which "always are useful and, on occasion, could even be critical" to appel-
late review). When the legislature requires trial courts to make express findings,
and further provides for appellate review of the decision made, we properly may
presume that the legislature does so, at least in part, to facilitate appellate review.

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imposing a discretionary award of attorney fees.1º The court
held, as it had in Matizza, that a court making such an award
must explain the basis for its award "through special findings
of fact or otherwise[.]" 327 Or at 95. In so holding, this court
noted that plaintiff had raised his challenge to the Court of
Appeals' failure to make special findings for the first time in
the petition for review. Id. at 95 n 6. The court concluded,
however, that plaintiff "was not required to take action to
preserve that issue below, because it arose when the Court of
Appeals issued its order." Id. In other words, McCarthy did
not declare that the issue was not subject to preservation
requirements. The court determined instead that, under the
circumstances, the plaintiff did not have an adequate oppor-
tunity to raise the deficiency in the findings to the Court of
Appeals and, for that reason, he did not have to do so.11

In light of our prior decisions and with the policy rea-
sons for rules of preservation in mind, we conclude that there
is no principled basis to abandon preservation requirements
in this context. Requiring a party to alert a trial court to its
failure to make special findings that are material to the deci-
sion, given the issues framed by the parties, serves the salu-
tary purpose of permitting the trial court to avoid making an
error or to correct an error already made. The policies of

10 In McCarthy, this court considered a trial court's authority to impose a dis-
cretionary award of attorney fees pursuant to ORS 20.075(1), which the court
deemed to be "analogous" to the awards under ORS 20.105(1) that concerned the
court in Matizza. 327 Or at 95. ORS 20.075(1) sets forth factors that a trial or appel-
late court must consider whenever a statute gives a court discretion to award attor-
ney fees. The factors include considerations relevant to the conduct of the parties in
the case, the merit or frivolousness of their claims, and the effect of an award on
others who might assert good faith claims in similar cases. See ORS 20.075 (1)(a) -
(h) (enumerating factors). If the court decides to grant an award of attorney fees,
the court considers those same factors, in addition to others, in determining the
amount of the award. See ORS 20.075(2) (so stating).

11 Indeed, after Matizza was decided, both this court and the legislature
adopted express preservation requirements for the special findings that Mattiza
held are required. See ORAP 13.10(7) (party may "request findings regarding the
facts and legal criteria that relate to any claim or objection concerning attorney
fees"; request must be in the caption of the petition, objection, or reply filed by the
party; failure to request findings is a waiver of objection to the absence of findings
to support the decision); ORCP 68 C(4)(e) (on a party's request, a trial court "shall
make special findings of fact and state its conclusions of law on the record regard-
ing the issues material to the award or denial of attorney fees"; request must be in
the title of the statement supporting the award or the objection to it; in the absence
of a request, court may make either general or special findings).

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using judicial resources efficiently and not blindsiding a trial
court are strong ones that underlie preservation require-
ments in other contexts. Those policies are no less strong
here.

Requiring preservation in this context also is fair to
opposing counsel. It may be, as petitioner argues, that the
party moving for dismissal has no interest in opposing special
findings. But the moving party does have an interest in
ensuring that the record is adequately developed, and in
avoiding an unnecessary remand for proceedings that could
have been conducted before the appeal.12

Finally, requiring preservation in this context is con-
sistent with our holding in Pamplin. Preservation serves the
twin goals of ensuring procedural fairness and judicial effi-
ciency. The findings required by Pamplin facilitate meaning-
ful review. Those objectives are complementary. A party that
does not preserve an issue, when it is reasonably possible to
do so, is not entitled to appellate review of it, meaningful or
otherwise. Said another way, in any number of circum-
stances, a party's very right to appellate review of an issue is
that party's to preserve or lose. Requiring a party to take
reasonable steps to ensure that such review is meaningful is
consistent with, rather than contrary to, Pamplin.

We therefore hold that the usual rules of preserva-
tion apply to a challenge to a trial court's failure to make
express special findings required by Pamplin. We further
conclude that petitioner failed to preserve that challenge in
this case. The post-conviction court expressly resolved the
factual dispute presented-i.e., whether petitioner refused to

12 This case illustrates that point. Here, petitioner argued in his written mem-
orandum that dismissal, rather than a lesser sanction, was not warranted. On that
point, he summarily urged that he should be required to pay for the three-page cost
of the deposition transcript (as opposed to what defendant proposed as an alterna-
tive, which was to bear defendant's full costs of the terminated deposition). At the
hearing on the motion to dismiss, however, petitioner did not argue the point. Nor
did he present any evidence (e.g., his financial circumstances) as to how a lesser
sanction would deter him from the dilatory tactics he had engaged in for the past
two years. Had petitioner put the state as well as the post-conviction court on
notice of his position that a special finding on the point was required, the record
and the parties' arguments to the post-conviction court likely would have
addressed the issue directly.

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be deposed-and explained why dismissal was warranted.
But the court did not explain or make findings directed to the
"analytical process" by which it concluded that a lesser
sanction would not do, as Pamplin held is required. 319 Or at
436-37. Petitioner did nothing to call that omission to the
post-conviction court's attention, however. That is true even
though petitioner had at least two opportunities to do so.
First, petitioner could have requested special findings pur-
suant to Pamplin, either by noting the request in his written
submission in advance of the hearing, or by orally asking the
court to make special findings at the outset of the hearing.
Pamplin is settled case law, and a generic request for find-
ings pursuant to Pamplin, given the substantive issues
framed by petitioner's opposition to the motion to dismiss,
would have sufficed to place the post-conviction court on
notice of the need to make the omitted finding. Petitioner's
second opportunity to preserve the issue came when he was
served with the proposed judgment by the state. At that
point, before judgment was entered, petitioner could have
objected to the absence of a finding or other explanation as to
why a lesser sanction would not suffice. 13

In holding that the usual rules of preservation apply
to a challenge to a trial court's failure to make the express
special findings required by Pamplin, we emphasize that
nonpreservation of that issue precludes only a procedural
challenge to the failure to make one or more special findings;
it does not preclude review of a substantive challenge to the
merits of the dismissal, if that challenge is preserved, as it
was in this case. The Court of Appeals therefore properly
reached the merits of petitioner's argument that dismissal

13 That opportunity arose pursuant to UTCR 5.100(1). At the conclusion of the
hearing, as earlier noted, the post-conviction court directed the state to prepare the
judgment. Under UTCR 5.100(1), the state was obligated to serve the proposed
judgment on petitioner's counsel not less than three days before submitting it to
the court, unless petitioner's counsel stipulated that he had no objections to the
judgment or unless it was presented in open court with all parties present. Implicit
within that provision is the other party's ability to raise objections to the form of
the judgment in the time period before it is entered, which could encompass an
objection to a missing finding. Nothing in the record suggests that the state did not
comply with its obligation to serve the petitioner with a copy of the proposed form
of judgment. Nor has petitioner argued in this case that preservation was not
possible.

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was too harsh a sanction, while properly declining to con-
sider, as an independent claim of error, petitioner's challenge
to the lack of a finding that dismissal was warranted. Peeples,
209 Or App at 26-27.14

Finally, we again emphasize the importance of spe-
cial findings to meaningful appellate review of a dismissal
under ORCP 46 B(2)(c). Dismissal with prejudice is the "ulti-
mate sanction" that a trial court may impose. The special
findings that Pamplin enjoins are of particular assistance to
an appellate court's review of a trial court's exercise of discre-
tion in imposing that sanction. In some cases, as happened in
this case, incomplete findings, together with an adequately
developed record, may provide a minimally adequate basis
for a reviewing court to consider the merits of the trial court's
exercise of discretion in ordering the dismissal. But that will
not always be true. As a result, both the moving party and the
trial court run the risk that, without special findings, the
appellate court will not be able to conclude that dismissal as
a sanction is warranted. See, e.g., Seely v. Hanson, 317 Or
476, 483-84, 857 P2d 121 (1993) (unaided by specific findings,
court was unable to conclude that attorney fee award under
ORS 20.105(1) was warranted). Because of the value of spe-
cial findings in reviewing a dismissal decision, all partici-
pants in that decision-the moving party, the opposing party,
and the trial court-have an interest in ensuring that the
requisite findings are made.

The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.

DURHAM, J., concurring.

The majority concludes that the Court of Appeals
correctly declined to review petitioner's argument that the
trial court had failed to make the express special findings of

14 In his petition for review to this court, petitioner also sought review of the
Court of Appeals' resolution of the merits of his substantive challenge, arguing that
the record does not support a conclusion that he refused to be deposed, and also
that dismissal was, in all events, too harsh a sanction for his conduct. As earlier
noted, we allowed review to consider whether the findings required by Pamplin are
subject to preservation requirements. We decline to consider petitioner's challenge
to the merits of the dismissal decision. See ORAP 9.20(2) (Supreme Court opinion
need not address each question raised in petition for review).

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fact that this court identified in Pamplin v. Victoria, 319 Or
429, 877 P2d 1196 (1994), as necessary for appellate review of
the dismissal of an action as a sanction under ORCP 46 D.
According to the majority, this court's cases, including
Pamplin, require lower courts to make findings of fact sup-
porting the court's order in this and similar circumstances to
facilitate meaningful appellate review. However, according
to the majority, those cases fail to address whether a party
must request findings of fact, or object to the court's failure to
make findings, to preserve for appellate review the issue of
the absence of findings of fact to support the court's order.
Addressing what the majority perceives as this court's past
silence on the topic, the majority presents a dissertation on
the presumed advantages of requiring preservation of error
and concludes that this case presents no occasion for reliev-
ing petitioner of the obligation to preserve for appellate
review the issue of the trial court's failure to make findings of
fact.

The problem, as I see it, with the majority's opinion
is that it misstates the substance of this court's prior analysis
in its cases the requirement of findings of fact in this context.
As a result of that incorrect premise, the majority opinion's
exposition on the relative advantages of requiring preserva-
tion of error regarding issues raised on appeal is an abstract
exercise.

The majority's faulty analysis is a serious concern
for two reasons. First, that error leads the majority to exam-
ine and decide an issue that this case does not raise; I discuss
that concern below at greater length. Second, the majority's
analysis incorrectly states the true history of this court's mul-
tiple decisions to require findings of fact by lower courts to
permit meaningful appellate review of awards of attorney
fees and discovery sanctions. An accurate portrayal of that
history will be an essential first consideration should this
court in the future decide whether to require lower courts to
observe specific procedures to safeguard meaningful appel-
late review by this court.

I begin by acknowledging that the result reached by
the majority is correct. That is so, however, because certain
rule changes have taken effect following certain decisions of

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this court, discussed below. It is those after-the-fact rule
changes, not the abstract merits of requiring preservation of
errors asserted on appeal, that satisfy me that this court
should decline to review petitioner's argument regarding the
inadequacy of the trial court's findings of fact to support the
dismissal of his petition.

I also agree with the majority's implicit assumption
that, in analyzing this court's cases, the court properly can
disregard the fact that those cases relied on different sources
of statutory and rule-based authority to award attorney fees
and to impose discovery sanctions. Regardless of those differ-
ing sources of authority, the court relied on the same pruden-
tial principles in requiring lower courts to make specific find-
ings of fact supporting their decisions in those contexts.

I turn, then, to a brief review of this court's cases dis-
cussing the necessity of findings of fact by a trial court in
these settings. In Tyler v. Hartford Insurance Group, 307 Or
603, 771 P2d 274 (1989), the plaintiff sought review of an
award by the Court of Appeals of attorney fees to certain
defendants in the case. The court did not set out any assign-
ment of error by the plaintiff concerning the absence of find-
ings of fact; neither did the court describe the plaintiff's argu-
ments concerning the Court of Appeals order. Instead, the
court stated:

"The order does not cite any statutory or other authority for
the award of attorney fees. Both petitions for attorney fees,
however, were based solely on ORS 20.105(1), which
provides:

" 'In any civil action, suit or other proceeding in a dis-
trict court, a circuit court or the Oregon Tax Court, or in
any civil appeal to or review by the Court of Appeals or
Supreme Court, the court may, in its discretion, award
reasonable attorney fees appropriate in the circum-
stances to a party against whom a claim, defense or
ground for appeal or review is asserted, if that party is a
prevailing party in the proceeding and to be paid by the
party asserting the claim, defense or ground, upon a
finding by the court that the party wilfully disobeyed a
court order or acted in bad faith, wantonly or solely for
oppressive reasons.'

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"That statute does not expressly require the Court of
Appeals to make findings on the record. Nevertheless, we
conclude that findings are required. Otherwise, we have no
basis upon which to review the award of attorney fees, nor
to consider what the Court of Appeals understood the rele-
vant statutory words to mean. Accordingly, we remand this
case to the Court of Appeals to make the necessary findings
to support its order.

"The petition for review is allowed. The decision of the
Court of Appeals is vacated. The case is remanded to the
Court of Appeals for further proceedings."

Id. at 605.

This court's disposition in Tyler demonstrates what
in later cases became even more explicit: It is virtually impos-
sible to engage in appellate review of awards of attorney fees,
often totaling many thousands of dollars, unless the lower
court explains, in findings of fact, the factual basis for the
award and the authority on which the court relied. The court
stated that findings were required. It used that term
advisedly: even though the statute authorizing the award
was silent regarding the need to make findings of fact,
the court itself required the trial court to make those
findings to protect its ability to conduct meaningful appel-
late review of the award. The court took that step not in
response to any apparent objection by the plaintiff or the
defendants but, instead, for prudential reasons tied to the
court's strong interest in safeguarding meaningful appellate
review.

Tyler left open the question whether trial courts had
the same responsibility as did the Court of Appeals to make
findings of fact to support an award of attorney fees under
ORS 20.105(1). This court answered that question in the
affirmative the following year in Mattiza v. Foster, 311 Or 1,
803 P2d 723 (1990). In Mattiza, a conservator brought an
action asserting that the defendant had exercised undue
influence over the plaintiff's elderly aunt, causing financial
injury. The trial court rejected that claim. After making
extensive findings of fact, the trial court determined that the
plaintiff had asserted her claim in bad faith and awarded
$7,620 in attorney fees to the defendant. The Court of

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Appeals affirmed. On review, this court construed the phrase
"bad faith" in ORS 20.105(1) to require a finding, supported
by evidence, that the plaintiff had pursued her claim for a
reason other than the procurement of the fair adjudication of
an authentic claim. The court also addressed the require-
ment of findings of fact to allow meaningful review by an
appellate court of the relevant issues:

## "The Need for Findings

"Although, in the absence of a request for special find-
ings by one of the parties, the court 'may' make special find-
ings or general findings, ORCP 62 A, the award of attorney
fees under ORS 20.105(1) is a situation in which special
findings are a prerequisite to meaningful review by an
appellate court. See Tyler v. Hartford Insurance Group, 307
Or 603, 771 P2d 274 (1989) (requiring findings by Court of
Appeals in cases under ORS 20.105(1)); see also Amey, Inc.
v. Gulf Abstract & Title, Inc., 758 F2d 1486, 1508 (11th Cir
1985), cert den 475 US 1107 (1986) (under Florida law, the
trial court 'must make a specific finding of "complete
absence of justiciable issue of either law or fact" or face
reversal or remand on the award of attorneys fees.'). Not
only should the trial court make findings regarding the
merit of the party's claim, defense, or ground for appeal or
review, and which of the three grounds under ORS
20.105(1) the court is considering, but it should also specify
which actions of the party are violative of the statute."

Id. at 10-11.

The Mattiza court noted that the trial court had dis-
cussed the facts extensively but had failed to resolve the key
disputed fact, i.e., it had failed to make a finding of fact about
whether the plaintiff had had an improper motive in bringing
and maintaining the action:

"Did plaintiff act in bad faith? Even assuming that the
trial court's conclusions noted above are supported by the
evidence in this case, there was no finding-and the evi-
dence would not support a conclusion-that plaintiff's
actions constituted conduct, the primary aim of which was
something other than the procurement of the fair adjudica-
tion of an authentic claim. We conclude that, regardless of
other motives she may have had, plaintiff's primary aim

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was to obtain an adjudication of a bona fide dispute. Defen-
dant is not entitled to attorney fees under ORS 20.105."

# Id. at 12. (Emphasis in original.)

Tyler and Mattiza, read together, indicate that trial
and appellate courts were required to make findings of fact
supported by evidence to facilitate meaningful appellate
review of an award of attorney fees. Because those cases
addressed fee awards under ORS 20.105(1), they logically did
not answer the question whether the same requirement
applied to the imposition of other significant sanctions.

In Pamplin, this court answered that question. In
that case, the trial court dismissed the plaintiff's personal
injury action under ORCP 46 B(2)(c) as a sanction for the
plaintiffs' failure to provide discovery materials requested by
the defendant. ORCP 46 B(2)(c) authorized the trial court to
sanction a party's failure to provide discovery by making
"such orders in regard to the failure as are just, including"
dismissal of the action. The trial court heard the parties' con-
flicting arguments about whether the plaintiffs had complied
adequately with the defendant's discovery requests. Without
making any findings of fact to resolve those issues, the court
ordered the action dismissed. This court construed the rule to
permit dismissal only when that sanction is "just," and only if
there is "willfulness, bad faith, or other fault of like magni-
tude by the disobedient party." Pamplin, 319 Or at 436. To
confirm compliance with those criteria, this court required
the trial court to satisfy the requirement of findings of fact
that the court had discussed in Mattiza:

"We turn now to consideration of whether findings of
fact are required to support the sanction of dismissal under
ORCP 46 B(2)(c).

"In a similar context, this court has noted the impor-
tance of findings for 'meaningful review by an appellate
court.' Mattiza v. Foster, 311 Or 1, 10, 803 P2d 723 (1990).
Mattiza involved an award of attorney fees under ORS
20.105(1). Although that statute does not expressly require
findings, this court held that findings are required,
reasoning:

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"'Although, in the absence of a request for special
findings by one of the parties, the court "may" make spe-
cial findings or general findings, ORCP 62 A, the award
of attorney fees under ORS 20.105(1) is a situation in
which special findings are a prerequisite to meaningful
review by an appellate court. 311 Or at 10 (citations
omitted).'

"Here, as in Mattiza, the sanction of dismissal under
ORCP 46 B(2)(c) is a 'situation in which special findings are
a prerequisite to meaningful review by an appellate court.'
As discussed above, that sanction is appropriate only when
it is 'just' and only when there is willfulness, bad faith, or
other fault of like magnitude by the disobedient party. To
assess the propriety of imposing that sanction, an appellate
court needs to know (1) the historical facts on which the
trial court based its decision to impose it and (2) the analyti-
cal process by which the trial court concluded that dismissal
is 'just' in view of those facts and in view of the other sanc-
tions that are available. The present case provides a classic
example of the difficulty of meaningful appellate review,
because of the unresolved factual questions in the record.

"In summary, we hold that a trial court that imposes the
sanction of dismissal under ORCP 46 B(2)(c) must make
findings of fact and must explain why that sanction is 'just';
that a finding of willfulness, bad faith, or fault of a similar
degree on the part of the disobedient party is required; and
that a finding of prejudice to the party seeking discovery is
not required."

Pamplin, 319 Or at 436-37. (Footnote omitted.)

In Pamplin, the defendant argued that the court
should disregard the plaintiff's objection, raised for the
first time on appeal, to the insufficiency of the trial court's
factual findings to support dismissal.1 The court's

1 The defendant's brief to this court in Pamplin stated, in part:

"Plaintiffs argue that the trial court's decision to impose the sanction of
dismissal against plaintiffs should be reversed because the court's order was
not accompanied by specific findings of fact or law. The court's order in this
matter was issued pursuant to ORCP 46 B. There is no requirement under that
provision for the court to issue special findings. Normally, courts are free to
rule on motions without being required to make special findings. Under ORCP
62, a court is not required to make special findings unless demanded to do so by
a party. There was no such demand in this matter."

Brief of Defendant-Respondent at 20-21, Pamplin, 319 Or 429. (Footnote omitted.)

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response-reversal and remand to the trial court because the
court's factual findings were insufficient to justify dis-
missal-demonstrates that the court accorded no weight to
the defendant's preservation argument.

Finally, this court later explained why it did not
accept a preservation of error argument when the trial court
failed to make the necessary findings of fact. In McCarthy v.
Oregon Freeze Dry, Inc., 327 Or 84, 957 P2d 1200, modified
on recons, 327 Or 185, 957 P2d 1200 (1998), the Court of
Appeals granted attorney fees to a defendant in an appeal.
The trial court had dismissed the underlying employment
discrimination action and the plaintiff had appealed, but lost.
The defendant sought attorney fees, arguing that it was the
prevailing party and that the appeal was frivolous. The
plaintiff filed objections. Without making any findings of fact,
the Court of Appeals granted attorney fees to the defendant
in the sum of $12,000.

On review in this court, the plaintiff argued, among
other things, that the Court of Appeals had failed to make
required findings of fact to support the award of attorney fees.
This court acknowledged that the plaintiff had "raised the
issue of the lack of special findings in his petition for review to
this court." The court explained, however, that preservation of
that issue before the Court of Appeals was not required:

"He was not required to take action to preserve that
issue below, because it arose when the Court of Appeals
issued its order."

Id. at 95 n 6.2

On reconsideration, this court explained why it
regarded the lack of findings of fact as a reversible error, even
though the plaintiff had asserted that issue for the first time
on review:

"Efficient and meaningful appellate review for abuse of
discretion cannot occur on the present record, because we
can only speculate about the possible relevant facts and

2 The court's phrase, "because [the issue] arose when," perhaps better could
have been stated as "because [the issue] did not arise until," but the meaning is the
same.

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legal criteria relied on for the court's award of attorney fees.
Adequate findings about those matters need not be complex
or lengthy. Rather, they must describe the relevant facts and
legal criteria for the court's decision to award or deny attorney
fees in any terms that are sufficiently clear to permit mean-
ingful appellate review. Our opinion in this case adopted that
description of the requirement of findings on appellate review
of an award of attorney fees from Mattiza and Tyler and, after
reconsideration, we adhere to that description."

Id. at 190-91.

The foregoing cases demonstrate that this court has
applied consistent principles regarding appellate review of
the lack of factual findings to support a serious sanction,
whether the facts concerned either an award of attorney fees
for frivolous litigation or the dismissal of an action for non-
cooperation with discovery obligations. At the time of its prior
decisions, no rule obligated a party to request findings of fact
regarding those decisions, or compelled the adversely
affected party to object to an insufficiency or lack of factual
findings after-the-fact.

The court did not analyze the requirement of ade-
quate findings of fact in those cases as the source of a proce-
dural right that a party was free to invoke by requesting find-
ings or, failing a request, to abandon. Rather, the court
consistently has treated the duty to make findings of fact as
an intrinsic part of the trial court's decisional responsibility.
It is for that reason that McCarthy observed that the issue
concerning the absence of findings arose when the Court of
Appeals made its decision without entering the required find-
ings of fact. Additionally, McCarthy noted that the plaintiff
was not required (by any statute, rule, or court decision) to
assert that issue at an earlier point because the issue arose
solely from the unexplained decision of the Court of Appeals.

Under the extant rules of appellate procedure, this
court's announcement of the lower court's obligation to
accompany its decision on the merits with explanatory find-
ings of fact was a perfectly reasonable one. It cannot be gain-
said that requiring findings of fact in this context safeguards
meaningful appellate review that, without findings, would be
difficult, if not virtually impossible.

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Several of the pertinent rules have changed since
this court decided those cases. Effective January 1, 2000, the
legislature, acting through the Council on Court Procedures,
amended ORCP 68, concerning the allowance of attorney fees
in the trial courts, in two significant ways. First, the amend-
ment deleted the following sentence in ORCP 68 C(4)(c)(ii):
"No findings of fact or conclusions of law shall be necessary."
Second, the amendment added ORCP 68 C(4)(e), which
provides:

"On the request of a party, the court shall make special
findings of fact and state its conclusions of law on the record
regarding the issues material to the award or denial of
attorney fees. A party shall make a request pursuant to this
paragraph by including a request for findings and conclu-
sions in the title of the statement of attorney fees or costs
and disbursements or objections filed pursuant to para-
graph (a) or (b) of this subsection. In the absence of a
request under this paragraph, the court may make either
general or special findings of fact and may state its conclu-
sions of law regarding attorney fees."

The latter amendment is important because it cre-
ates a procedure, tied specifically to the recovery of attorney
fees, authorizing either party to request special findings of
fact and conclusions of law regarding any award of attorney
fees. The amendment to ORCP 68 C(4)(c)(ii) also is important
for purposes of this discussion, because a party now may
employ a simple motion, under ORCP 14 A, to point out to the
trial court that its findings of fact-general or specific-fail to
apply the applicable legal criteria or to explain why the
award or denial of fees is justified.

Another important rule, ORAP 13.10(7), also has
changed. Before 1999, that rule was silent regarding any pro-
cedure for requesting findings of fact regarding an award of
attorney fees in an appellate court. However, in 1999, the
rule was amended to authorize a party to request findings
regarding the facts and pertinent legal criteria, and to
declare that a party's failure to request findings constituted a
waiver of any objection to the absence of findings. A further
amendment, made a permanent part of the rule in 2003, obli-
gated every party who requests findings to incorporate the

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request into the caption of that party's petition, objection, or
reply. ORAP 13.10(7) now provides:

"A party to a proceeding under this rule may request find-
ings regarding the facts and legal criteria that relate to
any claim or objection concerning attorney fees. A party
requesting findings must state in the caption of the peti-
tion, objection, or reply that the party is requesting findings
pursuant to this rule. A party's failure to request findings in
a petition, objection, or reply in the form specified in this
rule constitutes a waiver of any objection to the absence of
findings to support the court's decision."

(Footnote omitted.)

Those rule changes place in perspective the real
issue that this case poses: In light of the new rules of proce-
dure now in effect, should the court continue to follow the
prudential rule announced in its prior cases? My answer is
no. A contrary answer would create one set of requirements
for trial court fact-finding and another, different set of
requirements for appellate court fact-finding. The need for
uniformity in this area trumps any benefit that might result
from different requirements concerning the obligation to
request findings of fact in the trial and appellate courts.

It is of no consequence that Pamplin addressed the
requirement of findings in the context of discovery sanctions
and the rule amendments discussed above address proce-
dures concerning attorney fees. Pamplin demonstrates that
this court readily borrowed the rationale for its decision
regarding a discovery sanction from cases concerning attor-
ney fee disputes. The same interest in uniformity regarding
procedural matters, noted above, indicates that, if the vitality
of the findings procedures adopted in the attorney fee cases
on which Pamplin relied is superseded or undermined by
later rulemaking, so is the rationale for the prospective appli-
cation of Pamplin in the context of discovery sanctions.

Petitioner failed to object to the sufficiency of the
trial court's findings of fact to support the sanction of dis-
missal, although he easily could have done so. That failure
prevents this court from addressing petitioner's contention
on appeal that the findings failed to explain why dismissal,
rather than a lesser sanction, was necessary. That is so

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because intervening rulemaking has undermined this court's
prior case law that, in the absence of later rulemaking, would
have supported petitioner's argument. Accordingly, I concur
in the result that the majority reaches, but not in its
rationale.3

I concur.

Gillette, J., joins in this concurring opinion.

3 The majority concludes its opinion by reinforcing "the importance of special
findings to meaningful appellate review of a dismissal under ORCP 46 B(2)(c)[ ]"
and draws particular attention to the vital rule that the specific findings required
in Pamplin play when an appellate court examines a trial court's exercise of discre-
tion under that rule. Peeples, 345 Or at 225. The majority also observes that a fail-
ure by a trial court to enter the necessary findings of fact may prevent the appellate
court from concluding that a dismissal is warranted. Id. I join fully in those
statements.