The Utah Supreme Court has dismissed an appeal of an order to compel arbitration and stay proceedings, holding that such an order is not final and is not immediately appealable without a court's timely grant of permission or certification.

In Powell v. Cannon, No. 20060776, 2008 WL 495543 (Utah Feb. 26, 2008), patient Powell filed suit against physician Cannon, alleging that Cannon was negligent while Powell was giving birth. Cannon moved to compel arbitration and stay proceedings in accordance with an arbitration agreement between the parties.

The trial court granted the motion to compel and stay, rejecting Powell's allegations that the agreement was unconscionable, invalid, and that it could not bind Powell's unborn child as a non-signatory. Powell appealed the trial court's order. Cannon opposed the appeal by arguing that appellate courts have no jurisdiction over an appeal from an order compelling arbitration and staying further proceedings.

The Court cited the well-settled rule that a party may only appeal a final order that "ends the controversy between the litigants… leaving noting for the court to do but execute the judgment." However, the Court acknowledged three exceptions to the rule: where there is a statutory avenue for such appeals, where a party obtains permission of the court to appeal an interlocutory order, or where an order is certified as final by the court.

The Court held that the order here was not final because it did not end the controversy. Specifically, the Court noted that the trial court retained jurisdiction over the case by staying the litigation pending arbitration.

Powell was not totally without means to challenge the order, according to the Court. While Powell could no longer pursue the court's permission or certification to appeal because of timeliness issues, Powell still could pursue a challenge based on unconscionability or invalidity through a motion to vacate after the award was issued.