holding that the most important factor in the preservation hierarchy is whether the relevant issue was raised in the trial court, and the least important factor is whether the appellant alerted the trial court to the specific argument raised on appeal
How later courts described this case
- holding that the most important factor in the preservation hierarchy is whether the relevant issue was raised in the trial court, and the least important factor is whether the appellant alerted the trial court to the specific argument raised on appeal
- holding that raising an issue at trial is the most essential method of preserving error, identifying a source for a claimed position is less important, and making a particular argument is the least important method of preserving error
- explaining that, ordinarily, for purposes of preservation, it is "essential" that an issue have been raised at trial, but not that a particular source of authority have been identified, or argument asserted
- recognizing distinctions between raising an issue, identifying a source for a claim, making an argument, and discussing the importance of clearly presenting issues on appeal
Written by the judges who cited it.
The opinion
JONES, J.,
concurring.
I write separately to attempt to ensure that there will be no misunderstanding of the words written by Justice Linde:
“* * * Of course, it is important to efficient judicial procedures that the positions of the parties be clearly presented to the initial tribunal and on appeal. See, e.g., Shields v. Campbell, 277 Or 71, 77-78 , 559 P2d 1275 (1977). But an equally important justification for requiring preservation of claims of error, consistent with the directive to administer justice ‘completely,’ Or Const, Art I, § 10, is fairness to the adversary parties, and courts can avoid taking parties by surprise by inviting memoranda on inadequately briefed questions. * * *” 307 Or at 188 (1988).
These words do not diminish the requirement that a party claiming error must present that claim to the trial court before it will be considered on appeal. I agree that courts can invite memoranda on inadequately briefed questions, but before doing so the questions must have been presented to the initial tribunal, as well as on appeal.