dissenting.
I agree with the majority’s analysis, except regarding preservation of the issue of findings in support of the sanction of dismissal. In my view, requiring a sanctioned party not only to raise the issue of the appropriate sanction but also to request findings on that issue, as the majority does, is inconsistent with the Supreme Court’s interpretation of ORCP 46. Accordingly, I would hold that the post-conviction court erred by failing to make findings indicating why dismissal, rather than a lesser sanction, was required and would remand for the court to make findings.
*28In Pamplin v. Victoria, 319 Or 429, 437, 877 P2d 1196 (1994), the Supreme Court noted the impossibility of assessing the propriety of dismissal as a sanction under ORCP 46 B without knowing both the facts on which the trial court based its decision and the “analytical process” through which the trial court decided that dismissal, not some lesser sanction, was appropriate. The court explained:
“In a similar context, this court has noted the importance 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:
“ ‘Although, in the absence of a request for special findings by one of the parties, the court “may” make special 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.’ * * * 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 analytical process by which the trial court concluded that dismissal is ‘just’ in view of those facts and in view of the other sanctions that are available.”
319 Or at 436-37 (footnote omitted). Pamplin thus distinguished cases in which, unless findings are requested, a trial court “may’ make findings. In cases such as this, the court must make findings, even in the absence of a request for findings.
In SAIF v. Harris, 161 Or App 1, 11, 983 P2d 1066, rev den, 329 Or 527 (1999), we identified an exception to the general rule of Pamplin: we concluded that a sanctioned party had waived the right to have the trial court consider lesser sanctions. The majority reads Harris differently, stating that “we held that the special findings requirement recognized in Pamplin is subject to basic rules of waiver and *29preservation.” 209 Or App at 23-24. However, although Harris referred to preservation principles in support of its analysis, the holding was phrased in terms of waiver: “We conclude that, by her delay, defendant has waived the right to raise the issue on appeal that the trial court failed to consider less severe sanctions and that it failed to make a finding of‘willfulness’ in the order of default.” 161 Or App at 11.
Framing the issue as waiver, not simply preservation, was deliberate. (And, if Harris had been simply a preservation case, surely we could have saved a good deal of discussion by saying as much.) We explained in Harris that a line of earlier cases, all requiring remand for findings,
“were predicated on the concept that to allow for meaningful review of the sanction, the trial court should have the first opportunity to decide, under the proper criteria, what is an appropriate sanction. Here, we do not reach that issue because as we discuss later, defendant has waived her right to require the trial court to undertake that consideration.”
Id. at 10 n 13 (emphasis in original). In other words, Harris concluded that, if a party properly raises the issue of sanctions, then the trial court must make findings about the appropriate sanction. That conclusion is consistent with Pamplin, and it gives no support to the idea that a sanctioned party must specifically request findings.
Subsequently, in Budden v. Dykstra, 181 Or App 523, 47 P3d 49 (2002), we treated Harris as requiring preservation of a request for findings, rather than being based on the sanctioned party’s waiver of any objection to the sanction. In so doing, Budden went astray from the principles of Pamplin and Harris,1 The statement in Budden that a sanctioned party must request findings regarding the propriety of a lesser sanction cannot, in my view, be squared with *30Pamplin’s statements that, regardless of whether a request for findings is made, “special findings are a prerequisite to meaningful review by an appellate court.” 319 Or at 436 (internal quotation marks omitted).
Here, petitioner raised in the post-conviction court the issue of the appropriate sanction. In opposition to defendant’s motion to dismiss, he contended that dismissal was too severe a sanction and that, if the court concluded that he had refused to be deposed, a lesser sanction should be considered. The majority is correct that, if petitioner had requested findings, the post-conviction court would have had an opportunity to avoid its failure to make findings — although that lack of findings leaves us unable to meaningfully review and identify any error regarding the sanction itself. 209 Or App at 25-26. Nevertheless, petitioner cannot be said to have waived his right to appellate review of imposition of the sanction, and Pamplin instructs us that findings regarding the propriety of the sanction are a prerequisite to meaningful appellate review, regardless of whether findings have been requested. 319 Or at 436. Accordingly, I would remand to allow the post-conviction court to make findings regarding whether lesser sanctions would suffice.
I respectfully dissent.
The result in Budden was nevertheless correct, because the sanctioned party’s conduct was consistent with the conduct in Harris that constituted waiver of review of the sanction itself. In Budden, as in Harris, the sanctioned party did not make any argument that lesser sanctions were appropriate until well after the sanctions were imposed. Budden, 181 Or App at 528 (issue of lesser sanctions not raised until a month after sanctions were imposed); Harris, 161 Or App at 10-11 (issue of lesser sanctions not raised until nearly a year after sanctions were imposed). Moreover, in Budden, the issue of lesser sanctions was raised only by a motion for reconsideration, a motion of questionable status. 181 Or App at 528.