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