The Right to Appeal – Use it or Lose it: Immediately Appealing the Denial of a Motion to Compel Arbitration in Washington State Courts

When a party to a lawsuit makes a motion to compel arbitration and loses, the Rules of Appellate Procedure (RAP) do not expressly provide that party with a right to immediately appeal the trial court’s order. But such a right does exist. The Washington Court of Appeals has repeatedly held that such an order should be deemed a “decision affecting a substantial right … that in effect … discontinues the action” within the meaning of RAP 2.2(a)(3). Thus, the order denying arbitration is appealable as a matter of right, and is not the subject of discretionary review. But that right comes with a cost. A party who does not immediately appeal such an order, but rather acquiesces to the lawsuit, will likely waive its ability to appeal the issue following a final judgment. In short, Washington litigants have a right to immediately appeal a trial court’s order denying a motion to compel arbitration, and they must use it or lose it. View full article.

This article appeared in the June 2009 issue of Washington State Bar News, the official publication of the Washington State Bar Association.

Ninth Circuit Applies U.S. Maritime Lien to a Pervasively Foreign Dispute

On 11 March 2008, the Ninth Circuit Court of Appeals issued its opinion in Trans-Tec Asia v. M/V Harmony Container. View full article (PDF).

A Guide to Appellate Motions on the Merits

Parties to an appeal often feel they have little choice but to follow Washington’s ordinary appellate procedure. Briefs are filed, a panel is selected, oral argument is heard and a decision is ultimately handed down. By its nature, the process can be protracted and expensive. In appropriate cases, however, there may be an alternative.

The “motion on the merits” procedure is intended to provide prompt and economical review of a trial court decision where the issues raised on appeal are clear. This note gives practitioners an overview of the rules governing motions on the merits and offers some advice to consider in deciding whether to file a motion on the merits and in preparing (and arguing) such a motion. View full article (PDF).

This article first appeared in the King County Bar Association’s December 2007 “Bar Bulletin.”

Feeding Assistant Regulations Upheld by Ninth Circuit Court of Appeals

On Friday, August 31, the Ninth Circuit Court of Appeals rejected a challenge to the CMS Feeding Assistant Regulations. The regulations allow States to permit skilled nursing facilities to use trained personnel to assist in feeding residents lacking complicated feeding needs. View full article (PDF).

The Most Important Ten Minutes: The Oregon Court of Appeals Creates a Private Right of Action for Missed or Short Rest Breaks

The Oregon Court of Appeals has decided that an employee has a private right of action against an employer for unpaid wages if the employer fails to provide paid rest breaks to the employee as required by Oregon law. However, the employee does not have a private right of action against the employer for failure to provide unpaid meal breaks.

In Gafur v. Legacy Good Samaritan Hospital and Medical Center, 213 Or.App. 343, 161 P.3d 319 (2007), the plaintiffs brought claims against their employer for regular and penalty wages based on allegations that the employer failed to provide paid rest breaks and unpaid meal breaks. The plaintiffs also alleged a breach of contract claim based on the theory that mandatory meal and rest breaks were inherent in their employment contract. View full article (PDF).

Court of Appeals Decision Addresses Standards for Compliance With Notice and Claims Procedures for Construction Contracts

Are cracks beginning to appear in the doctrine of strict compliance with construction notice and claims procedures? Last week’s decision by the Washington Court of Appeals (Division II) suggests that the three year old rule laid out by the Washington Supreme Court in the Mike M. Johnson, Inc., v. Spokane County case may not be the last word on the strict compliance standard. View full article (PDF).