dissenting.
I respectfully dissent.
This case is before the court on cross-motions for summary judgment. The parties raise only two questions, one legal and one factual. I will discuss each question below in detail. If defendant prevails on either question, it is entitled to a judgment dismissing the complaint. By contrast, plaintiff is entitled to summary judgment only if he prevails on both questions.
1. Plaintiffs claim arises under ORS 192.410 et seq., not ORS 554.120(1).
*311The legal question is whether defendant is a “public body” because it is a “special district,” as those terms are used in ORS 192.410(3), which provides:
“ ‘Public body’ includes every state officer, agency, department, division, bureau, board and commission; every county and city governing body, school district, special district, municipal corporation, and any board, department, commission, council, or agency thereof; and any other public agency of this state.” (Emphasis added.)
Plaintiff asserts that defendant is a “public body” under ORS 192.410(3) and, consequently, must permit plaintiff to inspect and copy defendant’s business records pursuant to the Inspection of Public Records law, ORS 192.410 to 192.505. Plaintiff has made that argument, and only that argument, at every stage of this litigation. Defendant contends that it is not a “public body” under ORS 192.410(3).
The trial court held that defendant was not a “public body’ under ORS 192.410(3) because it was a “non-profit public corporation created pursuant to ORS chapter 554. It is not a special district.” The Court of Appeals agreed and affirmed. Miller v. Water Wonderland Improvement District, 141 Or App 403, 918 P2d 849 (1995).
Given that legal issue, it cannot be gainsaid that the parties, the trial court, and the Court of Appeals will be surprised — a stronger term may be appropriate here — to read the majoritys response. The majority evades completely the question whether defendant is a public body subject to ORS 192.410 to 192.505. The majority recharacterizes the legal question and asks instead whether defendant has denied plaintiff his right, under ORS 554.120(1),1 to inspect records of an ORS chapter 554 corporation of which he is a member.
Plaintiff never pleaded or argued below, in any manner, that defendant violated ORS 554.120(1). His amended complaint made only one reference to ORS chapter 554, by *312identifying defendant as “a public non-profit corporation incorporated under the provisions of ORS 554.005 to ORS 554.340.” In my view, the mere identification of the statutes that authorize defendant’s creation as a nonprofit corporation is not sufficient to raise any issue concerning defendant’s possible violation of ORS 554.120(1).
Every other material allegation in plaintiffs amended complaint addressed defendant’s asserted liability for violating the Inspection of Public Records law, ORS 192.410 et seq. After describing plaintiffs August 18, 1994, request to inspect, examine, and obtain copies of some of defendant’s records, plaintiff alleged:
“4.
“The request by the plaintiff for inspection, examination, and copies of records was made under rights granted to the public for reasonable and proper opportunities for inspection of the records of a public body in the office of the public body pursuant to ORS 192.420 and ORS 192.430.
“5.
“Plaintiff then petitioned the Deschutes County District Attorney under the provisions of ORS 192.470, to order the WWID to make available for inspection certain records of the WWID. * * *
“7.
“Under ORS 192.460 and ORS 192.470, an actual controversy has arisen between plaintiff and defendants over the inspection, examination, copying, and production of public records of the WWID. Plaintiff contends that records of the WWID are required to be made available for inspection, examination, and copying under ORS 192.420, ORS 192.430, and ORS 192.440. * * * This restraint imposed on plaintiff is not reasonable and not in accordance with ORS 192.430.
“8.
“This declaratory proceeding is specifically authorized under ORS 192.460 and ORS 192.465 and is governed by ORS 192.490.”
*313In his prayer, plaintiff sought
“an order requiring defendants make available such records immediately for inspection, examination and copying by plaintiff in accordance with ORS 192.430.”
Plaintiff never asked for a declaration that defendant violated ORS 554.120(1).
Because this appeal arises from a summary judgment proceeding, it is appropriate to examine plaintiff’s motion for summary judgment, as well as his amended complaint, to determine the legal basis on which he sought summary judgment. Plaintiffs motion discloses that plaintiff was in a dispute over defendant’s assessment practices concerning plaintiffs property located within defendant District. Among other things, plaintiff contended that none of defendant’s directors was elected in accordance with ORS 554.070 or 554.090 and, for that reason, the assessment was unauthorized by law. He sought defendant’s records concerning the directors’ election to the board, and this action ensued. The parties disagree whether defendant denied plaintiff access to any records, but I discuss that separate factual question below.
Plaintiffs motion for summary judgment argued extensively that defendant was a “public body” under ORS 192.410(3), and concluded:
“WHEREFORE, it is respectfully submitted plaintiff has the right to inspect, examine and copy the public records of defendant WWID in accordance with ORS 192.430Ü”
Plaintiffs motion does not assert that defendant violated ORS 554.120(1).
It is correct that, in defending against plaintiffs motion, defendant argued that the court should deny plaintiff any relief under ORS 192.410 et seq. because he had “adequate recourse to examine the records of this corporation under ORS 554.120(1).” That argument, whether correct or incorrect on its merits, does not serve to shift the legal basis of plaintiffs claim from ORS 192.410 et seq. to ORS 554.120(1). The phrase quoted above merely stated another reason why the court should deny plaintiffs claim under ORS *314192.410 et seq. Considering defendant’s argument in its proper context, the majority unfairly distorts defendant’s argument by asserting that it was defendant’s “position” that “ORS 554.120(1) controls this case.” 326 Or at 309. That context explains why both the trial court and the Court of Appeals resolved this case under ORS 192.410 et seq. and did not base their rulings on ORS 554.120(1).
As this court has pointed out in the past, ordinarily it is essential that a party raise an issue at trial. State v. Hitz, 307 Or 183, 188, 766 P2d 373 (1988). It is less essential to identify a source for a claimed position and least essential to make a particular argument in support of a claimed position. Ibid. In this case, the only issue that plaintiff raised at trial was defendant’s liability, if any, under ORS 192.410 et seq. Plaintiff gave neither lower court a meaningful chance to consider and decide whether defendant had violated any duty imposed on it by ORS 554.120(1). Because rules regarding preservation of error protect the fundamental fairness of litigation as a case advances through the appellate process, we should enforce those rules, not disregard them. See Davis v. O’Brien, 320 Or 729, 737, 891 P2d 1307 (1995):
“[T]he rules pertaining to preservation of error in trial courts are intended to advance goals such as ensuring 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 argument.”
It appears to me that the trial court and the Court of Appeals probably were correct in ruling that defendant is not a “public body” under ORS 192.410(3), but it is unnecessary to take a position on that question for purposes of this opinion. The majority has transformed completely the basis for this action in a way that plaintiff never conceived. It is not surprising that defendant’s briefs, at trial and on two levels of appeal, make no attempt to justify defendant’s conduct under ORS 554.120(1). The majority’s last minute change of the playing field in this action has denied defendant fair notice and the opportunity to be heard on the majority’s novel theory of liability.
*3152. The factual record supports defendant, not plaintiff.
The factual issue concerns plaintiffs claim that defendant denied plaintiff access to its records. Plaintiff argued in his motion for summary judgment that defendant had denied him such access. He stated that he relied on the “pleadings and file in this case.” Plaintiff did not file an affidavit to support his motion or to resist defendant’s motion for summary judgment. In its response to plaintiffs motion for summary judgment, defendant asserted that it furnished plaintiff with the records of defendant that plaintiff requested. Defendant also filed an affidavit of Walter Seaborn. It stated, as material:
“1. I am the President and a member of the Board of Directors of Water Wonderland Improvement District.
“2. Roy Miller has previously requested certain records of the corporation. I have furnished those records to Mr. Miller through his then attorney, Raymond A. Babb.
“3. We have never denied Mr. Miller access to the corporate records. * * * We will continue to provide records to Mr. Miller upon proper request.”
That affidavit supports defendant’s factual argument that defendant did not refuse to provide its records to plaintiff. It stands unrebutted on the record before the court.
The trial court did not address the significance of the facts asserted in the affidavit, as well as the absence of any factual rebuttal to the affidavit, because it resolved the case on the alternative legal ground discussed earlier in this opinion. However, this court cannot avoid addressing defendant’s factual defense in deciding whether plaintiff is entitled to relief.
ORCP 47 D states, in part:
“When a motion for summary judgment is made and supported [by an affidavit] as provided in this rule an adverse party may not rest upon the mere allegations or denials of that party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this section, must set forth specific facts showing that there is a genuine issue as to any material fact for trial. If the adverse party does not so *316respond, summary judgment, if appropriate, shall be entered against such party.”
The majority’s decision to grant affirmative relief to plaintiff violates that rule. Because the record, viewed in the light most favorable to defendant, establishes that plaintiffs factual claim of a denial of records is not true, the only proper disposition of this case is to affirm the trial court’s decision granting summary judgment to defendant. That disposition is compelled by the last sentence of the excerpt of ORCP 47 D quoted above, and the majority provides no explanation for avoiding that rule.
Finally, the majority’s construction of ORS 554.120(1) is incorrect. That statute affords members and creditors of defendant a right of “inspection” regarding the corporation’s records. That right encompasses the opportunity to view the corporation’s records, but nothing more. With no reference to the statutory text or other evidence of legislative intention, the majority declares that plaintiffs right of inspection also includes a right to receive copies of the inspected documents and the authority to charge a fee for the copies.
There may be good reasons to support a statutory amendment that would embody the additional policy choices that the majority has discovered in ORS 554.120(1). On the other hand, the legislature may have had compelling reasons to limit plaintiffs right to one of “inspection” only. Ordinarily, plaintiff would be required to debate in the legislative assembly the wisdom of imposing on defendant the duty to provide copies of its records to members, and whether it should charge a fee for that service. The majority has sidestepped that normal process and has granted to plaintiff rights against defendant that the legislature never has authorized. Because the majority’s result violates any plausible construction of plaintiffs statutory right of “inspection” regarding defendant’s records under ORS 554.120(1), I cannot join it. Accordingly, I dissent from the majority’s decision.
ORS 554.120(1) provides:
“The board of directors shall cause to be kept a well-bound book entitled ‘Records of Proceedings of Board of Directors,’ in which shall be recorded minutes of all meetings, proceedings, certificates, bonds, and any and all corporate acts, which records shall be at all times open to the inspection of anyone interested, whether members or creditors.”