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When Can a Party Obtain Appellate Review Prior to the End of Trial?

Rarely is a litigant lucky enough to have every motion ruled in her favor.  Unfortunately, litigants are often faced with adverse rulings that either lessen their ability to recoup what they feel they are entitled to or, in the case of defendants, all but guarantee that a judgment will eventually be rendered against them.  Often, litigants faced with adverse rulings then want the court of appeals to hear their grievances.  However, unless the decision constitutes a final decision, i.e. one that conclusively resolves all disputes in the litigation,  the litigant’s only option is to seek discretionary review.  Below is an outline of when a party may seek an appeal as a matter of right and when a party is required to petition for discretionary review.

Appeals as a Matter of Right

All litigants have the right to have the court of appeals review their case.  The only issue regarding review by the court of appeals is when the court will consider the party’s appeal.  RAP 2.2(a) enumerates 13 orders from which appeal may be taken as a matter of right.  The court of appeals must hear all appeals filed after there is a final decision in a matter.  For the purposes of this blog post, I will focus on subsections one and three as they are the most common bases for an appeal as a matter of right.

RAP 2.2(a)(1) Appeal of a Final Judgment

Once a final judgment is entered, a party has the right to seek an appeal as a matter of right.  Final judgment, however, does not include an order granting partial summary judgment,[1] an order of default,[2] an order denying a motion for summary judgment,[3] or an order compelling arbitration in Washington.[4]  Instead, a “final judgment” is one that is a final, dispositive court decision that leaves no cause of action or counterclaim unresolved.

In general, there is little dispute as to whether a party may appeal as a matter of right pursuant to RAP 2.2(a)(1).  Best practices dictate that an appellant examine whether his or her claim is deemed a final judgment under RAP 2.2(a)(1) in order to know whether his or her 30-day window to file a notice of appeal has begun.

RAP 2.2(a)(3) Appeal of Judgment that affects substantial right, prevents final judgment, or discontinues action.

Under RAP 2.2(a)(3), a party may appeal as a matter of right any order that impacts a “substantial right” or frustrates the ultimate resolution of the action.  Given the broad language used by subsection three, its application is not as easy to pin down as RAP 2.2(a)(1).  To determine whether a litigant has a right to seek review pursuant to RAP 2.2(a)(3), the court will examine the practical effect of a trial court’s order on the overall proceedings.  For example, an order denying a stay while private arbitration is pending affects a substantial right, i.e. the right to private arbitration, and therefore is appealable as a matter of right.[5]  Further, while an order denying a motion to compel arbitration may not be appealable pursuant to subsection one, the effect of the order is to deny “the action” of arbitration, which is separate and distinct from the underlying merits of the case, and therefore appealable under subsection three.[6]  Additionally, while a dismissal without prejudice is general not considered to be a “final action”, a party may have a right to appeal under subsection three if the effect of the dismissal is to bar the litigant from filing a subsequent suit.[7]

Discretionary Review

In very limited circumstances the court of appeals will allow an interlocutory appeal, i.e. an appeal before a final judgment is rendered, of a court ruling if the decision is one of extreme importance, affects a litigant’s freedom, or the court’s decision and/or actions were so egregious as to warrant the appellate court’s intervention.  Critically though, courts disfavor piecemeal litigation and therefore are reluctant to grant discretionary review.[8]  In civil litigation, the most common basis for discretionary review is that either the trial court committed obvious error that renders further proceedings useless, that the trial court committed probable error that affected a substantial right of the party, or that the trial court so far deviated from the usual course of proceedings as to call for review by the court of appeals.

For example, discretionary review may be granted if the trial court ignores clear statutory language.[9]  Therefore, if the Court ignores nondiscretionary directions, i.e. “the court shall”, then discretionary review may be warranted.  Further, discretionary review may be granted when a trial court denies a motion for summary judgment when the denial is obvious error and where justice requires review.[10]  Finally, discretionary review may be granted when a litigant establishes that a trial court deviated from acceptable and usual court proceedings by ignoring unambiguous case law and statutory language.[11]

While the three cases cited to may provide guidance to a litigant that wishes to seek discretionary review, one should use restraint in seeking discretionary review.  The cited cases are exceptions and represent extreme examples that warrant discretionary review.  In most circumstances, the court of appeals will decline to grant discretionary review.

Plan Ahead

No attorney, despite what he or she may tell you, can predict with certainty whether a trial court will render an adverse ruling in a matter.  Even to the most experienced litigator, courts are, at some level, a black box into which she inputs the facts of her client’s case and hopes that the results are favorable.  Therefore, a thorough litigation strategy should include appellate considerations including means to maximize the likelihood of a successful motion for discretionary review should the need arise and pinpointing points in the litigation where the client may have a right to appeal pursuant to RAP 2.2(a)(3).

[1] Zimmerman v. W8Less Prods., LLC, 160 Wn. App. 678, 248 P.3d 601 (2011).

[2] Gutz v. Johnson, 128 Wn. App. 901, 117 P.3d 390 (2005)

[3] Johnson v. Rothstein, 52 Wn. App. 303, 759 P.2d 471 (1988)

[4] Saleemi v. Doctor’s Assocs., 166 Wn. App. 81, 269 P.3d 350 (2012)

[5] Herzog v. Foster & Marshall, 56 Wn. App. 437, 440, 783 P.2d 1124 (1989)

[6] Id. at 442.

[7] Munden v. Hazelrigg, 105 Wn.2d 39, 711 P.2d 295 (1985)

[8] State v. State Credit Asso, 33 Wn. App. 617, 622, 657 P.2d 327, 330 (1983)

[9] In re Marriage of Wolk, 65 Wn. App. 356, 828 P.2d 634 (1992)

[10] Sea-Pac Co. v. United Food & Commercial Workers Local Union 44, 103 Wn.2d 800, 699 P.2d 217 (1985)

[11] Marriage of Folise, 113 Wn. App. 609, 54 P.3d 222 (2002)

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