concurring.
In this post-conviction case, the success of petitioner’s inadequate assistance of counsel claim depends on facts underlying the execution of a search warrant. The majority holds that, because petitioner failed to tell the post-conviction court that it was required to find the facts in her favor, she may not now raise the sufficiency of her own evidence on appeal. I write separately because in a trial to the court, a party with the burden of proof is not required to raise the sufficiency of its own evidence as a matter of law in order to raise the issue on appeal. Because I agree with the majority’s disposition on the merits of petitioner’s post-conviction claim and its prospective application of the rule, I concur.
As an initial matter, I find it ironic that the majority sua sponte establishes a new preservation requirement when it was neither raised nor briefed by the parties. The majority, relying on State v. Wyatt, 331 Or 335, 346, 15 P3d 22 (2000), claims to reach the issue because we are obligated to consider preservation issues regardless of whether the parties raise *499them. However, Wyatt involved a run-of-the-mill preservation issue and does not stand for the proposition that we are obligated to create prospective new rules of preservation without the issue being raised.
Contrary to the majority’s decision to reach the preservation issue is Hendrix v. McKee, 281 Or 123, 575 P2d 134 (1978), which raised but did not decide the issue later resolved in Falk v. Amsberry, 290 Or 839, 843-45, 626 P2d 362 (1981). In Hendrix, the plaintiff sought damages for breach of contract. In a trial to the court, the defendant successfully raised an affirmative defense that the contract was illegal because it was contrary to public policy. On appeal, the plaintiff asserted that the evidence was insufficient to support the judgment. In a footnote, the Hendrix court questioned whether the plaintiff had properly preserved the argument. Hendrix, 281 Or at 125 n 2. The answer to that question depended on whether the rule, previously applied in jury trials, that a party could not complain on appeal about the insufficiency of evidence against it unless it had made a proper motion at trial, should be applied to trials to the court as well. The court refrained from answering that question because “[t]his extension of the general rule * * * does not comport with present practice, and defendant has not raised the issue; therefore, we need not yet decide it.” Id. Similarly to the situation in Hendrix, in this case, the majority’s extension of the rule from Falk does not comport with general practice and defendant has not raised the issue. Therefore, I do not believe that the issue is properly before this court.
Turning to the merits of the new preservation requirement, the majority’s approach reflects a fundamental misunderstanding of preservation of error, as well as of the functions of ORCP 54 B(2)1 and ORCP 60.2 The cases on *500which the majority relies stand for the unremarkable proposition that, if a party wishes to argue on appeal that it was entitled to judgment as a matter of law because the party with the burden of proof failed to prove an element of its claim, then it must move for a judgment of dismissal or for a directed verdict in the trial court in order to preserve the issue for appeal. The essential feature of this rule is that it concerns the proper disposition of an entire claim. “A motion for a directed verdict is not the proper vehicle for asking the trial court to decide as a matter of law that the movant is entitled to prevail on less than all of the elements of a claim.” NW Pac. Indem. v. Junction City Water Dist., 296 Or 365, 372 n 1, 677 P2d 671 (1984). It goes without saying that the same is true of a motion for judgment of dismissal.
Nonetheless, the majority expands the basic, unremarkable proposition set forth above to create a “preservation” requirement that the party with the burden of proof must move for something akin to a directed verdict in order to preserve an argument concerning the trial court’s evaluation of the sufficiency of any aspect of the evidence in support of a claim. That simply is not the case. The rule from Falk, as the majority acknowledges, concerns the legal insufficiency of the opposing party s evidence, not the sufficiency of a party s own evidence. 186 Or App at 494. Plaintiffs and defendants simply are not interchangeable in these circumstances. While our limited scope of review in certain types of cases, including post-conviction, makes it highly unlikely that a plaintiff will prevail on a “sufficiency of the evidence” argument on appeal, that is because of our limited review: A plaintiff should not be subjected to an artificial procedural hoop to jump through— one that is not based on any rule of civil procedure — in order to preserve such a question for appellate review.
In Millsap v. Eugene Care Center, 68 Or App 223, 228 n 4, 682 P2d 795, rev den, 297 Or 547 (1984), we rejected the notion that Falk had any application in this context and explained that the party with the burden of proof is not *501required to test the sufficiency of its own evidence so as to preserve the issue for appellate review.
The plaintiffs claim in Millsap was for reinstatement. The defendants raised the defense of impossibility. The plaintiff prevailed at trial and, on appeal, argued that, “because defendants failed to move for a directed verdict in the trial court on the issue of the sufficiency of the evidence regarding [its] ability to reinstate the plaintiff, the issue is not properly before this court.” Id. at 228. We rejected the plaintiffs contention:
“In support of that contention, [the plaintiff cites] Brown v. D2S Resources, 61 Or App 8, 656 P2d 946, rev den 294 Or 682 (1982), in which we stated that a party in a civil case, whether in law or equity, who has not asserted the legal insufficiency of the evidence in the trial court may not do so. on appeal. 61 Or App at 12. That rule, however, reflects an interpretation of ORCP 54 B(2), see Falk v. Amsberry, 290 Or 839, 844, 626 P2d 362 (1981), that is inapplicable here. In reference to equity cases, ORCP 54 B(2) replaced former ORS 18.210 and former ORS 18.220 and is equivalent to the motion for dismissal based on insufficiency of the evidence that the party without the burden of proof could make under those provisions. Official Commentary to ORCP 54 B(2) in Oregon Law Institute, 1980, Oregon Civil Procedure Rules, 160 (1979). In this case, impossibility of reinstatement is an affirmative defense; defendants had the burden of proof and presented evidence on that issue. It was not then incumbent upon them to test by motion the sufficiency of that evidence so as to preserve the issue for appellate review.”
Millsap, 68 Or App at 228 n 4 (emphasis in original). Just as the defendants had the burden of proof on the affirmative defense in Millsap, petitioner here has the burden of proof on her claim for relief.3
The majority laments that our interpretation of Falk in Millsap produced an unequal result — that the party with the burden of proof could argue on appeal that the evidence permitted only one conclusion without having raised the *502issue below but the opposing party could not. The reason behind that inequality is provided in Falk itself:
“The reasons for requiring a motion testing the sufficiency of the plaintiffs evidence in a jury trial as a condition for considering the sufficiency of the evidence on appeal apply with equal force in civil actions tried to the court. Lack of proof of a necessary fact may be overlooked if not brought to the attention of the trial court. An appropriate motion may allow the trial court to avoid entry of an erroneous judgment if the necessary proof cannot be supplied, thus preventing appeals and retrials on that basis.”
Falk, 290 Or at 843 (emphasis added). In short, a party asserting such a “lack of proof’ argument must make an appropriate motion to bring the matter to the trial court’s attention. A party with the burden of proof has no need to do so.
Further, the holding in Millsap is more aligned with the general rule of preservation relied on in Falk than is the majority’s holding in this case. Keeping in mind the basic reason for preservation requirements — to give the trial courts a chance to decide the issue — trial courts are always deciding whether the plaintiffs evidence is sufficient to support her or his claim in a trial to the court. There should be no requiremént that the party make the meaningless motion before the trial court evaluates the sufficiency of the evidence. Therefore, I disagree with the majority’s decision to overrule Millsap and extend the rule from Falk to a new context.
The majority asserts that this court came to a conclusion contrary to Millsap in Wilkes v. Zurlinden, 146 Or App 371, 378, 932 P2d 584, vac’d on other grounds, 325 Or 489, 940 P2d 518 (1997), adh’d to on remand, 152 Or App 130, 952 P2d 569, rev’d in part on other grounds, 328 Or 596 (1999). However, that case was vacated, and its reasoning has never been readopted in the present context, i.e., requiring the party with the burden of proof to test the sufficiency of its own evidence in a trial to the court. Wilkes was cited in Bend Tarp and Liner, Inc. v. Bundy, 154 Or App 372, 961 P2d 857, rev den, 327 Or 484 (1998). However, in Bend Tarp and Liner, Inc., the defendant prevailed on its counterclaim in a breach of contract action and, on appeal, the plaintiff alleged *503that the evidence was insufficient. The plaintiff had failed to preserve the issue because it had failed to challenge the sufficiency of the opposing party’s evidence on the counterclaim evidence at trial. That holding is in accord with the holding in Falk. To whatever extent Wilkes and Bend Tarp and Liner, Inc. conflict with Millsap, Millsap is more aligned with Falk.
For the above reasons, requiring a party seeking relief to test the sufficiency of its own evidence in a trial to the court is inconsistent with the general principles of preservation relied upon in Falk as well as with this court’s decision in Millsap. While petitioners or plaintiffs may lose appeals on this type of sufficiency of the evidence challenge, it is because of our limited standard of review and not because of any preservation principles.
I agree with the majority that this newly discovered rule of preservation should at the very least be applied prospectively. Finally, I agree with the majority’s disposition on the merits of the post-conviction claim. Let me repeat my disagreement with the majority: In a trial to the court, a party with the burden of proof on a claim is not required to make a motion to test the sufficiency of its own evidence.
ORCP 54 B(2) provides, in part:
“After the plaintiff in an action tried by the court without a jury has completed the presentation of plaintiffs evidence, the defendant * * * may move for a judgment of dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment of dismissal against the plaintiff or may decline to render any judgment until the close of all the evidence.”
ORCP 60 provides, in part:
“Any party may move for a directed verdict at the close of the evidence offered by an opponent or at the close of all the evidence. * * * The order of the *500court granting a motion for a directed verdict is effective without any assent of the jury. If a motion for directed verdict is made by the party against whom the claim is asserted, the court may, at its discretion, give a judgment of dismissal without prejudice under Rule 54 rather than direct a verdict.”
While Millsap is a case in equity, the opinion explains that the rule requiring a party to challenge the insufficiency of evidence in a court trial is applicable in all civil cases, “whether in law or equity.” 68 Or App at 228 n 4.