Initiating Review

INITIATING REVIEW

Who may appeal a decision of a Washington State Superior Court?

“Only an aggrieved party may seek review by the appellate court.”  RAP 3.1.  Normally, only a person or entity that was either a plaintiff or a defendant in the trial court action is a “party.”  However, an attorney for a party who was personally sanctioned by the trial court will be considered a “party” for the purpose of seeking review. [1]  Although being a party is a necessary condition for seeking review, it is not sufficient:  the party must also be “aggrieved.”  A party is “aggrieved” only if their “proprietary, pecuniary, or personal rights are substantially affected.”[2]

What are the deadlines for filing for review?

The Court of Appeals will accept review of a Superior Court decision only if an aggrieved party files either a timely Notice of Appeal or a timely Notice for Discretionary Review.  RAP 5.1(a).  Generally, a Notice of Appeal is timely only if it is filed in the Superior Court within 30 days of the decision you seek to have reviewed, or within 30 days of entry of the trial court order on certain post-decision motions.[3]  RAP 5.2(a) and (e).  Generally, a Notice for Discretionary Review is timely only if it is filed in the Superior Court within 30 days of the decision you seek to have reviewed, or within 30 days of entry of the trial court order on a timely motion for reconsideration.  RAP 5.2(b)[4]   If a statute sets a different (usually shorter) deadline for filing a Notice, the statutory period governs. RAP 5.2(d). [5]     There is a special rule that governs the onset of the 30 day period in cases where a party wants to appeal an order that resolves only part of the claims raised in the trial court.  RAP 2.2(d).  Although the Court of Appeals frequently grants extensions of other deadlines related to appeals, it will hardly ever grant an extension of the 30 day deadline to file a Notice.  RAP 18.8(b).

If a party files either sort of Notice too soon (after the decision has been announced but before the decision has been officially “entered”), the Court of Appeals will treat the Notice as having been timely filed. RAP 5.2(g).

What if another party has already filed a timely Notice?

“If a timely notice of appeal or a timely notice for discretionary review is filed by a party, any other party who wants relief from the decision must file a notice of appeal or notice for discretionary review with the trial court clerk within the later of (1) 14 days after service of the notice filed by the other party, or (2) the time within which [the party originally filing had to provide Notice].”  RAP 5.2(f).  If a party against whom an appeal has been taken simply wants the Court of Appeals to uphold the trial court decision, it need not file its own Notice.  However, if it wants the Court of Appeals to grant it affirmative relief from the trial court decision, it must generally file its own Notice.[6]  RAP 5.2(f) allows a party who wants to appeal only if another party appeals first a short period of time to wait to see what the other parties will do.

What sort of Notice is required?

For trial court actions that are “reviewable as a matter of right,” the aggrieved party files a Notice of Appeal.  RAP 5.1(a). For all other actions, the aggrieved party files a Notice for Discretionary Review.  RAP 2.2 lists trial court actions which may be reviewed “as a matter of right,”[7] the two most important of which for civil matters are “final judgments” and “decision[s] determining action[s].”

Figuring out whether a particular trial court action qualifies for review as a matter of right under RAP 2.2 can be fairly tricky.  For example, the courts have held that the denial of a motion to compel arbitration is reviewable as a matter of right because it “affect[s] a substantial right.”[8]  However, the grant of a motion to compel arbitration is typically not reviewable as a matter of right.[9]

Fortunately, if you mistakenly file a Notice of Appeal when a Notice for Discretionary Review was required (or vice versa), it shouldn’t matter.  Under RAP 5.2(c), the Court of Appeals treats an improperly designated Notice as if it were the proper sort of Notice (provided, of course, that it was timely filed).

The required contents of each type of Notice are spelled out by RAP 5.3(a) and (b).  Defects in the form of the Notice will be disregarded “if the notice clearly reflects an intent by a party to seek review.”  RAP 5.3(f).  The Notice is a short, simple document that should take less than a half hour to prepare.  Sample forms for both types of Notice are available at:  http://www.courts.wa.gov/appellate_trial_courts/div1/caseproc/

Where must the Notice be filed?

Both types of Notice must be filed in the trial court, not the Court of Appeals.  RAP 5.1(a).  The Notice must be accompanied by a filing fee, which is currently $250.  See: http://apps.leg.wa.gov/RCW/default.aspx?cite=36.18.018 and

Does filing a Notice of Appeal have different consequences from filing a Notice for Discretionary Review?

Yes.  Under RAP 6.1, “[t]he appellate court ‘accepts review’ of a trial court decision upon the timely filing in the trial court of a notice of appeal from a decision which is review able as a matter of right.”  Acceptance of review, in turn, triggers certain limitations on the trial court’s authority, which limitations are spelled out in RAP 7.1, 7.2, and 7.3.

A properly and timely filed Notice for Discretionary Review, on the other hand, does not automatically lead to acceptance of review.  The Court of Appeals has the discretion to accept or deny such review, and the party seeking discretionary review must follow the Notice for Discretionary Review with a Motion for Discretionary Review, which presents an argument as to why the Court of Appeals should accept review.  RAP 6.2.  Any party objecting to acceptance of review may submit a response to the motion.  RAP 17.4(e).  The criteria governing acceptance of discretionary review are spelled out in RAP 2.3(b).  The Motion for Discretionary Review must be filed with the Court of Appeals within 15 days of filing the Notice for Discretionary Review.  RAP 6.2(b).  A Motion for Discretionary Review may be ruled upon in the first instance by the commissioner or clerk of the court.  RAP 17.2(a).  A party aggrieved by a commissioner’s ruling may submit a motion to modify the ruling that will be ruled on by a judge or judges.  RAP 17.7.

 

Still have questions?

Contact me at 253-414-5235 or david@davidcorbettlaw.com

 


[1] An attorney who has been personally sanctioned by the trial court will be treated as a “party,” and allowed to appeal.  See, e.g., Splash Design, Inc. v. Lee, 104 Wn. App. 38, 44, 14 P.3d 879 (2000).

[2] See Breda v. B.P.O. Elks Lake City 1800 So-620, 120 Wn. App. 351, 353, 90 P.3d 1079 (2004).

[3] In civil matters, the most common motion that extends the deadline for filing a Notice of Appeal is a motion for reconsideration.   To have this effect, the motion for reconsideration itself must have been timely filed, which means within ten days of the trial court judgment, order, or decision.  CR 59(b).

[4] In other words, there are more post-decision motions the timely filing of which will delay the deadline for filing a Notice of Appeal than there are post-decision motions the timely filing of which will delay the deadline for filing a Notice for Discretionary Review.

[5] A partial list of statutes that provide distinct deadlines for filing a notice of appeal includes 1) RCW  8.04.098 (regarding orders of public use and necessity in condemnation matters);  2) RCW 8.16.130 (regarding eminent domain by school districts); 3) RCW 29A.68.120 (regarding election contests);  4) RCW 29A.72.190 (regarding appeals to the Supreme Court of initiative and referendum matters); 5) RCW 29A.56.270 (concerning recall elections);  6) RCW 35.44.260 and RCW 36.94.260 (review of assessments for local improvements by cities and counties, respectively); 7) RCW 47.32.060 (appeal of order removing obstruction from state highway);  8) RCW 54.16.160 (appeal of public utility district assessments); 9) RCW 57.16.090 (appeal of assessments by water-sewer districts); 10) RCW 85.08.440 (appeal of assessments by diking and drainage improvement districts); 11) RCW 87.56.225 (review of matters involving insolvent irrigation districts); and 12) RCW 90.03.200 (review of water rights determinations).  Except for the last two, each of these listed statutes substantially shortens the period in which an appeal may be taken.

[6] There is a narrow exception to this rule:  Under RAP 2.4(a), an appellate court will grant a respondent affirmative relief even if it did not file its own Notice “if demanded by the necessities of the case.”

[7] Strictly speaking, only a “review as a matter of right” is properly referred to as an “appeal.”  RAP 2.1(a)(1).  All other types of review by an appellate court are properly referred to as “discretionary review.”  RAP 2.1(a)(2).  In practice, both types of review are commonly referred to as “appeals.”

[8] See, e.g., Verbeek Properties, LLC v. GreenCo Environmental, Inc., 159 Wn. App. 82, 86, 246 P.3d 205 (2010).

[9] See, e.g., Herzog v. Foster & Marshall, Inc., 56 Wn. App. 437, 783 P.2d 1124 (1989).  But see Grant & Associates v. Gonzales, unpublished, 2006 WL 3004093 (Div. 2 2006) (apparently allowing appeal of grant of motion to compel arbitration).