concurring.
I concur with the majority opinion in this case and write separately only to discuss why I believe that the preservation issue regarding defendant’s ORS 12.070 argument is not controlled by the Supreme Court’s holding in Miller v. Water Wonderland Improvement District, 326 Or 306, 951 P2d 720 (1998).
Defendant filed his motion to stay the enforcement of a foreign judgment from the United States Bankruptcy Court for the District of New Mexico registered by plaintiff in Oregon pursuant to ORS 24.105 to 24.1175, otherwise known as the Uniform Enforcement of Foreign Judgments Act. ORS 24.135(2) provides the grounds upon which enforcement of a registered foreign judgment can be stayed, including “any ground upon which enforcement of a judgment of any court of any county of this state would be stayed [.]” One potential ground for staying the enforcement of a foreign judgment is found in ORS 12.070(1), which provides that “[a]n action upon a judgment or decree of any court of the United States, or of any state or territory within the United States * * * shall be commenced within 10 years.” The foreign judgment in this case originated in March 1994; it was not registered in *720Oregon until 2005, more than 10 years later. However, defendant’s motion in the trial court did not rely on ORS 12.070. Rather, he argued that the Oregon court should set aside the judgment “because it is no longer a valid and enforceable judgment in the jurisdiction in which it originated,” relying on a New Mexico statute providing for a seven-year period of viability after entry.
On appeal, defendant makes a single assignment of error in which he contends that the trial court erred in denying his motion, and, for the first time, he relies on ORS 12.070, arguing that even if the judgment is enforceable in New Mexico, it is not enforceable in Oregon because it was not registered within the 10-year period of time permitted by that statute. The majority correctly holds that defendant failed to comply with the preservation requirements of ORAP 5.45 with regard to the issue of whether ORS 12.070 operates to stay the enforcement of the judgment.
However, because the issue on appeal involves a potentially applicable statute, the Supreme Court’s decision in Miller lurks in the background. In Miller, the court held that a particular statute, raised for the first time on review, governed the issue on appeal even though the statute was never pleaded or argued in any manner in the trial court or this court. The court reasoned, “[T]he parties may not prevent a court from noticing and invoking an applicable statute by relying only on other sources of law.” 326 Or at 309 n 3. Arguably, the rule of Miller could apply here, where ORS 12.070, although not raised by defendant in the trial court, appears to stay the enforcement of a registered foreign judgment if the action on the judgment in Oregon is not commenced within 10 years from the entry of the judgment in the foreign jurisdiction.
Miller, however, in my view, is distinguishable. In Miller, the plaintiff filed a declaratory judgment action seeking to inspect and copy records of a water district corporation established under ORS chapter 554. In the trial court, the plaintiff argued that his right to inspect the records arose under the Public Records Act, ORS 192.410 to 192.505. The trial court held that the defendant was not a “public body” for purposes of ORS 192.410(3), because it was a nonprofit public *721corporation created pursuant to ORS chapter 554, rather than a “special district” under ORS 192.410(3). We affirmed the judgment of the trial court, characterizing the only issue before us as whether the plaintiff had a right to inspect the records under the Public Records Act. Miller v. Water Wonderland Improvement District, 141 Or App 403, 407, 918 P2d 849 (1995). The Supreme Court’s majority opinion, however, framed the issue differently, focusing on the issue as it had been pleaded under ORS chapter 554.
This case differs from Miller in that defendant never sought to stay enforcement of the judgment pursuant to Oregon law in his motion filed in the trial court. Rather, as described above, defendant relied entirely on the assertion that the judgment was unenforceable under a New Mexico statute. That difference brings into play the distinctions drawn for preservation purposes by courts between an issue, the identification of a source of law for a claimed position, and the making of a particular argument. Those distinctions were first drawn by the Supreme Court in State v. Hitz, 307 Or 183, 188-89, 766 P2d 373 (1988), and in Cooper v. Eugene Sch. Dist. No. 4J, 301 Or 358, 369 n 12, 723 P2d 298 (1986) (explaining that raising an issue is essential to preservation, and that identifying a source for a claimed position and making a particular argument are less so). In Stull v. Hoke, 326 Or 72, 77, 948 P2d 722 (1997), the court applied the rule in order to allow the plaintiff to raise an argument concerning the proper construction of a statute for the first time on appeal where the broader legal issue — the meaning of the statute — had been preserved below.
It is often difficult to characterize a claim made for the first time on appeal as raising a new issue, identifying a new source for a claimed position, or making a different argument than was made below.1 In terms of ease of application, the test for preservation articulated in State v. Wyatt, 331 Or 335, 15 P3d 22 (2000), is generally more helpful. That test requires “that a party must provide the trial court with an *722explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted.” 331 Or at 343. The benefit of the Wyatt test is that it puts the burden on the appellant to demonstrate that the preservation requirement in ORAP 5.45(1) has been satisfied in the trial court rather than inviting parties to engage in games about semantics on appeal.
Regardless, I am persuaded that, under either calculus, defendant did not preserve the issue of whether the New Mexico judgment is enforceable under ORS 12.070. Clearly, under the Wyatt test, the trial court had no opportunity to rule on that issue. If the Hitz test is applied, then, I would hold that the broader legal issue raised by defendant’s motion in the trial court (whether the judgment is enforceable under New Mexico law) is not the same issue that he raises on appeal (whether defendant is entitled to have the enforcement of the New Mexico judgment stayed under ORS 12.070).
I concur.
See, e.g., Gadda v. Gadda, 341 Or 1, 7-8, 136 P3d 1099 (2006) (holding that because the broad issue was whether husband accomplished service by legally sufficient means, whether husband successfully accomplished service of the notice of appeal by mail or by delivery constitute alternative arguments encompassed within the broader legal issue).