Plaintiff, McDowell Welding & Pipefitting, Inc., appeals a supplemental judgment entered by the trial court following a remand from the Oregon Supreme Court for the trial court to determine the amount of prejudgment interest to which plaintiff was entitled. See McDowell Welding & Pipefitting v. U.S. Gypsum, 345 Or. 272, 290–91, 193 P.3d 9 (2008). On appeal, plaintiff contends that the trial court incorrectly ruled that plaintiff was entitled to only one day of prejudgment interest.

The court stated that the relevant constitutional provisions applied only to “ ‘those classes of cases in which the right [to a jury trial] was customary at the time the [Oregon] [C]onstitution was adopted or in cases of like nature.’ ” Id. at 386, 236 P.3d 782 (quoting McDowell Welding & Pipefitting v. U.S. Gypsum Co., 345 Or. 272, 279, 193 P.3d 9 (2008)) (alterations in original)

We recognize that "[t]he right to a jury trial * * * does not extend to cases that would have been tried to an equity or an admiralty court in 1859." McDowell Welding & Pipefitting v. U.S. Gypsum Co. , 345 Or. 272, 279, 193 P.3d 9 (2008). The well-reasoned dissent focuses on the fact that a shareholder derivative claim was tried to an equity court at the time of the Oregon Constitution as a matter of historical practice regardless of the nature of the underlying asserted claim.

We determine whether a claim is legal or equitable by examining the pleadings. McDowell Welding Pipefitting v. US Gypsum Co., 345 Or 272, 279, 193 P3d 9 (2008). The facts pertinent to our analysis of plaintiff's first assignment of error consist, therefore, of the allegations set forth in the parties' pleadings, which we now summarize.

“An executory accord is an agreement for the future discharge of an existing claim by a substituted performance.” McDowell Welding & Pipefitting v. U.S. Gypsum Co., 345 Or. 272, 281, 193 P.3d 9 (2008) (internal quotation marks omitted). It does not immediately discharge the underlying claim, but “merely suspends it” pending full performance.

Oregon courts often refer to these agreements as "executory accords." See, e.g., McDowell Welding & Pipefitting v. U.S. Gypsum Co., 345 Or. 272, 281 (2008). "A substituted contract," on the other hand, "is a contract that is itself accepted by the obligee in satisfaction of the obligor's existing duty."

In interpreting that section, most of this court's cases have sought to determine, as a procedural matter, which claims or defenses will entitle a party to a jury trial. See, e.g., McDowell Welding & Pipefitting v. U.S. Gypsum Co., 345 Or. 272, 279, 193 P.3d 9 (2008) ; Deane v. Willamette Bridge Co., 22 Or. 167, 29 P. 440 (1892) ; Tribou v. Strowbridge, 7 Or. 156 (1879). On that procedural issue, the court consistently has held that Article I, section 17, does not give a party a right to a jury trial for claims or defenses that would have been tried to a court of equity in 1857 when the Oregon Constitution was adopted.

The Supreme Court has delineated two separate analytical categories for purposes of our Article I, section 17, analysis: The first category is made up of civil actions that existed "when the Oregon Constitution was adopted in 1857," and the second consists of cases that did not exist in 1857 but came into existence later. Id . ; see McDowell Welding & Pipefitting v. US Gypsum Co. , 345 Or. 272, 279, 193 P.3d 9 (2008) ("The right to a jury trial * * * does not extend to cases that would have been tried to an equity or an admiralty court in 1859."); Horton , 359 Or. at 226, 376 P.3d 998 (summarizing M. K. F. v. Miramontes , 352 Or. 401, 404, 287 P.3d 1045 (2012), as holding that the "state constitutional jury trial right extends to new causes of action that are ‘of like nature’ to claims and defenses that would have been tried to a jury in 1857"). For claims that are within the first category, the analytical path requires determining whether the claim existed, and the "right to a jury trial was customary" for that claim "at the time the Oregon Constitution was adopted."

Those cases, which we discuss in more detail below, suggest that developing caselaw regarding common law torts or the evolution of new common law rights and obligations would be subject to the same jury trial right analysis that this court adopted in Miramontes. But Kim is correct in pointing out that neither in Miramontes nor in any other case has this court suggested that a party can bring its action within the civil jury trial right of Article I, section 17, simply by asserting that its claim seeks some form of monetary relief. Indeed, in Miramontes this court reaffirmed its earlier holding in McDowell Welding & Pipefitting v. US Gypsum Co. , 345 Or. 272, 284-86, 193 P.3d 9 (2008), that a claim for specific performance of a settlement agreement was for the court, rather than a jury, to decide, despite the fact that it sought the payment of a sum of money. 352 Or. at 424, 287 P.3d 1045. And nothing in Miramontes supports the idea that a party would be entitled to a jury trial on claims for traditionally equitable remedies such as injunctive relief, which require the exercise of discretion and the "balancing of a variety of considerations to reach a just outcome."

Because the court's analysis did not depend on whether "compensable injury" meant accepted conditions or the work accident, we hesitate to treat a passing statement in Sprague as controlling. See, e.g. , McDowell Welding & Pipefitting v. US Gypsum Co. , 345 Or. 272, 281, 193 P.3d 9 (2008) (when prior opinions "did not expressly consider the argument that plaintiff raises here," this court "hesitate[s] to give them controlling effect without examining the premises of plaintiff's argument more closely"); Cohens v. Virginia , 19 U.S. (6 Wheat) 264, 399, 5 L.Ed. 257 (1821) (Marshall, C.J.) ("[G]eneral expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.").