Powell v. Cannon

2008 UT 19
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Weston Powell and Shannon No. 20060776
Powell, individually,
and on behalf of Anniston
Powell, a minor,
Plaintiffs and Appellants,
v.
Cynthia Cannon, M.D.;
Salt Lake Regional Medical
Center; Avenues Women’s
Center, LC; and Does I F I L E D
through V,
Defendants and Appellees. February 26, 2008
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Third District, Salt Lake
The Honorable Ann Boyden
No. 050920269
Attorneys: Todd Wahlquist, Salt Lake City, for plaintiffs
Elliott J. Williams, Carolyn S. Jensen, Stephen
Hester, Salt Lake City, for defendants Dr. Cannon
and Avenues Women’s Center; Rodney R. Parker, Brian
P. Miller, Heidi J. Alder, Salt Lake City, for
defendant Salt Lake Regional Medical Center
---
PARRISH, Justice:
INTRODUCTION
¶1 This case presents us with issues surrounding the
enforceability of an arbitration agreement. Specifically, we are
asked to decide whether a parent can bind his or her unborn child
to an arbitration agreement with a health care provider and
whether the execution of the arbitration agreement in this case
was procedurally unconscionable. Before considering these
issues, however, we must determine whether the district court’s

1 Between the time Shannon signed the arbitration agreement
and the time she brought suit, the legislature replaced the Utah
Arbitration Act, Utah Code Ann. §§ 78-31a-1 to -20, with the Utah
Uniform Arbitration Act, Utah Code Ann. §§ 78-31a-101 to -131.
Throughout this opinion, we refer to the most recent version, the
Utah Uniform Arbitration Act, because the relevant statutes are
procedural and “procedural statutes enacted subsequent to the
initiation of a suit which do not enlarge, eliminate, or destroy
vested or contractual rights apply not only to future actions,
but also to accrued and pending actions as well.” Dep’t of Soc.
Servs. v. Higgs, 656 P.2d 998, 1000 (Utah 1982); see also Docutel
Olivetti Corp. v. Dick Brady Sys., Inc., 731 P.2d 475, 478 (Utah
1986) (holding that section 78-31a-19 was procedural).
No. 20060776 2
order compelling arbitration and staying the underlying
litigation constitutes a final appealable order. Because we
conclude that it does not, we dismiss the appeal for lack of
jurisdiction.
BACKGROUND
¶2 Shannon Powell and her husband Weston (collectively,
“the Powells”) filed suit against Dr. Cynthia Cannon
(“Dr. Cannon”), the Avenues Women’s Center (“the Center”), and
Salt Lake Regional Medical Center (“SLRMC”) (collectively,
“Defendants”). The complaint alleged claims for negligence
arising from the medical care provided to Shannon and her child
as she gave birth on December 7, 2002, at SLRMC. Specifically,
the Powells claim that Dr. Cannon, the delivery doctor, applied
excessive traction to the child’s head, resulting in a brachial
plexus injury, and that Defendants were negligent in failing to
perform a caesarean section.
¶3 Dr. Cannon and the Center filed a motion to stay
litigation and compel arbitration pursuant to Utah Code section
78-31a-4 (2002) (repealed and replaced by section 78-31a-108).1
SLRMC later joined the motion. The motion was grounded on an
arbitration agreement signed by Shannon on her first visit with
Dr. Cannon at the Center.
¶4 Under the arbitration agreement, “[a]ll claims for
monetary damages against the physician [or any related party]
must be arbitrated.” The agreement also states an intention to
bind “any spouse or heirs of the patient and any children,
whether born or unborn” at the time of the injury. The agreement

2 Miller v. USAA Cas. Ins. Co., 2002 UT 6, ¶ 18, 44 P.3d 663
(citing First Nat’l Bank of Hailey, Idaho v. Lewis, 45 P. 890,
891 (Utah 1896)).
3 No. 20060776
ends with a signature line for the patient and a statement that
the patient’s signature indicates that the patient read and
understood the agreement, that the agreement was verbally
explained to the patient, and that the patient was given the
opportunity to have all of her questions answered.
¶5 The Powells opposed the motion to stay litigation and
compel arbitration, arguing (1) that the arbitration agreement
should not be enforced because its execution was procedurally
unconscionable, (2) that the agreement was invalid because it was
never verbally explained and because it had been required as a
condition of medical treatment, and (3) that an arbitration
agreement cannot bind an unborn child.
¶6 Following an evidentiary hearing, the district court
entered an order staying the litigation and compelling
arbitration. The district court supported the order with
findings of fact and conclusions of law stating that (1) the
manner in which the parties entered into the arbitration
agreement was not procedurally unconscionable, (2) the terms of
the arbitration agreement were not substantively unconscionable,
and (3) Shannon had the legal authority to bind her unborn child
to arbitration of all claims arising from Defendants’ care.
¶7 The Powells appealed the district court’s order, and
Defendants countered with a motion to dismiss for lack of
jurisdiction, arguing that the district court’s order compelling
arbitration and staying litigation was not a final order from
which an appeal could be taken. The Powells opposed the motion
and filed an alternative petition asking us to treat the matter
as a petition for interlocutory appeal.
¶8 We entered an order that deferred ruling on Defendants’
motion to dismiss and allowed the parties to brief the merits of
their claims. However, we denied the Powells’ request to treat
their notice of appeal as a petition for an interlocutory appeal
because it was not filed within the requisite time period.
STANDARD OF REVIEW
¶9 “This court is the exclusive judge of its own
jurisdiction.”2 The question of whether an order is final and

3 See Bradbury v. Valencia, 2000 UT 50, ¶ 9, 5 P.3d 649 (“An
appeal is improper if it is taken from an order or judgment that
is not final, unless it fits within an exception to the final
judgment rule.” (citations omitted)).
4 Miller, 2002 UT 6, ¶ 18 (citing Pledger v. Gillespie, 1999
UT 54, ¶ 16, 982 P.2d 572).
5 See Utah Code Ann. § 78-2-2(3)(j) (2002) (authorizing
appellate jurisdiction over “orders, judgments, and decrees of
any court of record over which the Court of Appeals does not have
original appellate jurisdiction”); id. § 78-31a-129(1)(f)
(authorizing appeals from “a final judgment entered pursuant to
this chapter”).
6 Utah R. App. P. 3(a).
7 Bradbury v. Valencia, 2000 UT 50, ¶ 9, 5 P.3d 649
(emphasis omitted) (quoting Kennedy v. New Era Indus., Inc., 600
P.2d 534, 536 (Utah 1979)).
8 Kennedy, 600 P.2d at 536 (citing J.B. & R.E. Walker, Inc.
v. Thayn, 405 P.2d 342 (1965)).
9 Crosland v. Peck, 738 P.2d 631, 632 (Utah 1987) (quoting
Olson v. Salt Lake City Sch. Dist., 724 P.2d 960, 965 (Utah
(continued...)
No. 20060776 4
appealable3 is a question of law.4
ANALYSIS
¶10 We first consider whether the district court’s order
compelling arbitration and staying litigation is a final order
from which an appeal may be taken. The Powells argue that the
order is final, in which case we have jurisdiction to reach the
merits of their claims.5 Defendants, on the other hand, argue
that the order is not final because the Powells’ underlying
claims remain viable pending the entry of an order enforcing the
arbitration award.
¶11 A party may appeal “all final orders and judgments”
from a district or juvenile court, except as otherwise provided
by law.6 “For an order or judgment to be final, it ‘must dispose
of the case as to all the parties, and finally dispose of the
subject-matter of the litigation on the merits of the case.’”7
In other words, it must “end[] the controversy” between the
litigants,8 “‘leav[ing] nothing for the court to do but execute
the judgment.’”9

9 (...continued)
1986)).
10 Loffredo v. Holt, 2001 UT 97, ¶ 11, 37 P.3d 1070 (“We
have repeatedly affirmed the viability of the final judgment rule
as a barrier to our jurisdiction.” (citations omitted)); see also
Bradbury, 2000 UT 50, ¶ 9 (“An appeal is improper if it is taken
from an order or judgment that is not final, unless it fits
within an exception to the final judgment rule.” (citations
omitted)).
11 Loffredo, 2001 UT 97, ¶ 11.
12 See, e.g., Bradbury, 2000 UT 50, ¶ 11 (dismissing appeal
from summary judgment for failing to comply with final judgment
rule when a counterclaim and an intervening claim remained
pending before the trial court); ProMax Dev. Corp. v. Raile, 2000
UT 4, ¶ 15, 998 P.2d 254 (dismissing for lack of final judgment
where request for attorney fees remained pending before the trial
court); A.J. Mackay Co. v. Okland Constr. Co., 817 P.2d 323, 324-
25 (Utah 1991) (dismissing appeal from grant of summary judgment
for not complying with the final judgment rule because a
counterclaim remained pending before the trial court); Kennedy,
600 P.2d at 536 (dismissing for lack of final judgment where
actions against other defendants and a cross-claim remained alive
in the trial court).
13 Loffredo, 2001 UT 97, ¶ 11.
14 Kennedy, 600 P.2d at 537.
15 See, e.g., Tyler v. Dep’t of Human Servs., 874 P.2d 119,
120 (Utah 1994) (per curiam) (describing the three avenues
(continued...)
5 No. 20060776
¶12 The final judgment requirement is jurisdictional.10
Therefore, if the final judgment rule is not satisfied, we lack
jurisdiction over the appeal and must dismiss it.11 We have
strictly adhered to this rule12 because limiting appeals to final
judgments preserves scarce judicial resources by preventing a
party from prematurely appealing a nonfinal judgment, which would
result in piecemeal litigation.13 Strict adherence to the final
judgment rule also maintains “the proper relationship between
this Court and the trial courts.”14
¶13 There are, however, exceptions to the final judgment
rule. These exceptions allow parties to secure appellate review
of a nonfinal order in certain circumstances.15 The first such

15 (...continued)
available to parties who wish to appeal nonfinal orders); A.J.
Mackay Co., 817 P.2d at 325 (describing certification and
interlocutory appeal).
16 See Bradbury, 2000 UT 50, ¶ 12 (“[O]rders and judgments
that are not final can be appealed if such appeals are
statutorily permissible . . . .” (citation omitted)).
17 See, e.g., Manwill v. Oyler, 361 P.2d 177, 178 (Utah
1961) (stating that interlocutory appeals are intended to promote
efficiency and should be allowed in two circumstances: (1) if
the issue “appears essential to adjudicate principles of law or
procedure in advance as a necessary foundation upon which the
trial may proceed” or (2) if it appears likely that the appeal
will dispose of the issue).
18 See, e.g., Kennecott Corp. v. State Tax Comm’n, 814 P.2d
1099, 1100-01 (Utah 1991) (explaining proper circumstances under
which a party can request that the trial court certify an
interlocutory order, which would force the appellate court to
entertain the appeal).
19 Loffredo v. Holt, 2001 UT 97, ¶ 12, 37 P.3d 1070.
No. 20060776 6
circumstance is when the legislature provides a statutory avenue
for appealing nonfinal orders.16 For example, Utah Code section
78-31a-129(1)(a) allows for appeals from any court order “denying
a motion to compel arbitration.” The second such circumstance is
when a party obtains permission from the appellate court to
appeal an interlocutory order pursuant to rule 5 of the Utah
Rules of Appellate Procedure.17 The third circumstance is when
the district court certifies an order as final under rule 54(b)
of the Utah Rules of Civil Procedure.18
¶14 In summary, we have jurisdiction to hear this appeal
only if the order compelling arbitration and staying litigation
satisfies the final judgment rule or falls within one of the
recognized exceptions to that rule.
I. AN ORDER STAYING LITIGATION AND COMPELLING ARBITRATION IS NOT
A FINAL JUDGMENT BECAUSE IT DOES NOT END THE CONTROVERSY BETWEEN
THE PARTIES
¶15 A district court’s order is a final judgment only if it
ends the controversy between the parties by finally disposing of
the litigation on the merits as to all claims and all parties.19
If any issue remains pending, the final judgment rule is not

20 Id. ¶ 14 (“[T]he final judgment rule does not stand for
the proposition that the lower court need only resolve the
majority of the claims for us to entertain the case. Rather it
requires that all claims . . . be decided in order for a decision
to be appropriately appealed to this court.”).
21 Id. ¶ 12; ProMax Dev. Corp. v. Raile, 2000 UT 4, ¶ 15,
998 P.2d 254 (“[I]n the interest of judicial economy, a trial
court must determine the amount of attorney fees awardable to a
party before the judgment becomes final for the purposes of an
appeal under Utah Rule of Appellate Procedure 3.”).
22 Bradbury v. Valencia, 2000 UT 50, ¶ 11, 5 P.3d 649; A.J.
Mackay Co. v. Okland Constr. Co., 817 P.2d 323, 325-26 (Utah
1991).
23 Kennedy v. New Era Indus., Inc., 600 P.2d 534, 535-37
(Utah 1979).
24 2002 UT 6, ¶¶ 22-23, 44 P.3d 663.
25 Id. ¶ 2.
26 Id.
27 Id. ¶ 23.
7 No. 20060776
satisfied.20 We previously have held that a judgment is not
final if the district court has failed to determine whether
attorney fees should be awarded21 or if other claims, such as a
counterclaim22 or a cross-claim,23 remain pending.
¶16 In Miller v. USAA Casualty Insurance Co., we considered
whether an order compelling appraisal constituted a final
order.24 The Millers had contracted with USAA Casualty Insurance
Company to insure their home.25 The contract contained a clause
requiring that any disagreement with respect to the amount of
loss from property damage be settled by an independent
appraisal.26 We held that an order compelling the parties to
obtain an appraisal was not final because “the claims remain[ed]
pending between the parties and the controversy between the
litigants [was] perpetuated.”27
¶17 Although there are significant differences between
arbitration and appraisal (most importantly, the fact that an
arbitration award is binding and enforceable in court while an
appraisal award is only evidence to be considered by the

28 Id. ¶¶ 32-37.
29 Id. ¶ 24.
30 Utah Code Ann. § 78-31a-127(2) (2002).
31 Id. § 78-31a-125.
32 Id. § 78-31a-124(1)(a)-(f).
33 Id. § 78-31a-126(3).
34 Id. § 78-31a-124(1)(e).
No. 20060776 8
court),28 Miller’s holding is instructive because it explains
that after the order compelling the parties to obtain an
appraisal, “all of the Millers’ claims were still pending,
viable, and cognizable pursuant to that order, albeit in front of
an appraisal panel. Thus, [the order] failed to dispose of the
Millers’ claims on their merits and did not end the controversy
between the litigants.”29
¶18 In this case, the order compelling arbitration and
staying litigation neither ended the controversy between the
litigants nor disposed of the subject matter of the litigation.
Indeed, the district court retained jurisdiction over the case by
staying the litigation pending the completion of the arbitration.
Until the district court enters judgment on the arbitration
award, the Powells’ underlying claims for medical malpractice
remain viable and cognizable. According to statute, the district
court retains “exclusive jurisdiction . . . to enter judgment on
an award” from arbitration.30 Moreover, the court may modify or
correct an arbitration award before entering a judgment on it.31
The court may also vacate the award for various reasons,
including corruption, misconduct, partiality, abuse of authority,
or procedural defects that substantially prejudiced the rights of
a party.32 Furthermore, the court retains jurisdiction to grant
attorney fees and expenses for any litigation regarding the
confirmation, modification, or vacation of an award.33
¶19 Most importantly for this case, the district court may
vacate the award if “there was no agreement to arbitrate,” as
long as the party objected before participating in the
arbitration proceeding.34 In other words, after participating in
the arbitration, the Powells may file a motion requesting that
the district court vacate the arbitration award for the same
reasons they raise here on appeal.

35 956 P.2d 1073 (Utah Ct. App. 1998).
36 Id. at 1075.
37 Id. at 1075 n.1 (quoting Utah Code Ann. § 78-31a-14(1)(e)
(1992)).
38 Id. at 1080.
39 See, e.g., Evansville-Vanderburgh Sch. Corp. v.
Evansville Teachers Ass’n, 494 N.E.2d 321, 322 (Ind. Ct. App.
1986) (listing both cases holding that orders compelling
arbitration are final judgments and cases holding that they are
not); see also David B. Harrison, Annotation, Appealability of
State Court’s Order or Decree Compelling or Refusing to Compel
Arbitration, 6 A.L.R.4th 654 (1981 & Supp. 2001) (same).
9 No. 20060776
¶20 The court of appeals was presented with precisely this
situation in Cade v. Zions First National Bank.35 Cade was an
employee of Zions First National Bank who initiated a lawsuit
against the bank, alleging that his employment had been
improperly terminated.36 The bank moved to compel arbitration
under an agreement that Cade had signed. Cade argued, however,
that the arbitration agreement was only between himself and an
umbrella organization, not between himself and the bank. The
district court issued an order compelling arbitration and staying
litigation and certified the order as ripe for appeal. Rather
than appealing the issue of whether the arbitration clause was
valid, Cade participated in arbitration. Following arbitration,
Cade moved to vacate the arbitration award, arguing that “‘there
was no arbitration agreement between the parties to the
arbitration proceeding.’”37 The bank argued that Cade had waived
his right to challenge the award by participating in the
arbitration. In concluding otherwise, the court of appeals noted
that “[c]ourts from other jurisdictions have repeatedly held that
orders compelling arbitration and staying the underlying action
are not final orders and thus are not immediately appealable.”38
We agree. Therefore, we hold that an order staying litigation
and compelling arbitration is not a final order from which an
appeal may be taken.
¶21 We recognize that other courts have held to the
contrary39 and that our holding could conceivably require parties
to proceed in two forums in those cases where a party challenges
the validity of an arbitration agreement but is not able to
appeal an adverse ruling on that issue until after the
arbitration has been completed. We conclude, however, that the
recognized exceptions to the final judgment rule, specifically
petitions for interlocutory appeal and certification under rule

40 Utah Code Ann. §§ 78-31a-1 to -20 (2002) (repealed
May 15, 2003, and replaced by Utah Uniform Arbitration Act, Utah
Code Ann. §§ 78-31a-101 to -131 (2002 & Supp. 2007)).
41 Id. § 78-31a-129(1)(a).
42 1999 UT 54, 982 P.2d 572.
43 Id. ¶ 2.
No. 20060776 10
54(b) of the Utah Rules of Civil Procedure, provide sufficient
avenues to safeguard against this possibility.
II. NO STATUTORY EXCEPTION TO THE FINAL JUDGMENT RULE APPLIES,
AND THE POWELLS FAILED TO USE APPROPRIATE AVENUES FOR SECURING
REVIEW OF A NONFINAL ORDER
¶22 Because an order compelling arbitration and staying
litigation is not final, we lack jurisdiction over this case
unless it falls within one of the exceptions to the final
judgment rule. We conclude that this case fails to qualify for
any of the exceptions. First, the legislature has not provided
for a statutory right to appeal orders compelling arbitration.
Second, the Powells did not timely petition this court for
permission to pursue an interlocutory appeal. Finally, the
Powells did not request that the district court certify the issue
for immediate appeal, although certification would likely have
been appropriate.
A. The Legislature Has Not Authorized Appeals
from Nonfinal Orders Compelling Arbitration
¶23 The Utah Uniform Arbitration Act40 authorizes immediate
appeal from orders denying arbitration.41 This exception to the
final judgment rule is one-sided, however, because it authorizes
immediate appeal only from orders denying motions to compel
arbitration--not from orders granting motions to compel
arbitration. In Pledger v. Gillespie, we applied this statutory
exception in considering whether the court of appeals erred in
dismissing an appeal from the denial of a motion to compel
arbitration.42 The parties in the case--a doctor, a patient, and
an insurance company--disagreed regarding the payment for medical
services.43 The insurance agreement under which the doctor
provided services to the patient contained a clause requiring
arbitration of all payment disputes. The insurance company moved
to compel arbitration. The district court denied the motion, and

44 Id. ¶¶ 10-11.
45 Id. ¶ 11.
46 Id. ¶ 17.
47 2004 UT App 310, ¶ 11, 99 P.3d 379.
48 Id. ¶ 9.
49 Id. ¶ 13.
11 No. 20060776
the insurance company appealed.44 The court of appeals dismissed
the appeal for lack of jurisdiction, reasoning that the judgment
was not final because other claims against the insurance company
remained pending in the district court.45 On certiorari review,
we held that the plain language of section 78-31a-19(1), the
predecessor to section 78-31a-129, gave a party the right to seek
review of any order denying a motion to compel arbitration
“regardless of whether the order is a final judgment or has
otherwise been designated as final by the district court.”46
Thus, the insurance company could immediately appeal the district
court’s order denying the motion to arbitrate. Unfortunately for
the Powells, there is no similar statutory authorization to
immediately appeal orders granting motions to compel arbitration.
¶24 Despite the lack of statutory authorization to
immediately appeal orders compelling arbitration, the Powells
rely on language from Amalgamated Transit Union v. Utah Transit
Authority47 to argue that such orders are immediately appealable
because section 78-31a-129 “added to, rather than subtracted
from, the situations where an appeal may be filed as a matter of
right.” This argument is unavailing in light of our prior
conclusion that the order compelling arbitration in this case is
not a final appealable order. Moreover, their argument takes the
language from Amalgamated Transit Union out of context. In
Amalgamated Transit Union, all of the parties conceded that the
order compelling arbitration was a final judgment because it was
the only relief requested.48 Despite this fact, Amalgamated
Transit argued that the order was nonetheless not appealable
because section 78-31a-19 did not explicitly provide for the
appeal of an order compelling arbitration. Contrary to the
Powells’ argument, the holding of Amalgamated Transit Union
merely reiterated the final judgment rule. The order compelling
arbitration in that case was appealable because “[h]aving granted
the order compelling arbitration, there [was] nothing left for
the district court to rule upon.”49 In contrast, the order
compelling arbitration in this case was not otherwise a final
appealable order.

50 See Tyler v. Dep’t of Human Servs., 874 P.2d 119, 120
(Utah 1994) (per curiam) (dismissing appeal because the parties
did not seek permission from the court to file an interlocutory
appeal and because no final judgment had been entered in the
case).
51 Bradbury v. Valencia, 2000 UT 50, ¶ 8, 5 P.3d 649
(quoting A.J. Mackay Co. v. Okland Constr. Co., 817 P.2d 323, 325
(Utah 1991)).
52 See Kennecott Corp. v. State Tax Comm’n, 814 P.2d 1099,
1100 (Utah 1991).
53 Id.
No. 20060776 12
B. It Would Be Inappropriate to Treat the Powells’ Appeal as an
Interlocutory Appeal Because Their Petition for Interlocutory
Appeal Was Not Filed Within the Requisite Time Period
¶25 In responding to Defendants’ motion to dismiss the
appeal for lack of jurisdiction, the Powells filed an alternative
petition requesting permission to file an interlocutory appeal
under rule 5 of the Utah Rules of Appellate Procedure. By prior
order, we denied their request on the ground that it was
untimely. Unless an order is certified as final pursuant to rule
54(b) of the Rules of Civil Procedure, any petition seeking
interlocutory review must be filed within twenty days of the
issuance of the order sought to be appealed.50 This requirement
is jurisdictional, and “‘acquiescence of the parties is
insufficient to confer jurisdiction on the court.’”51 Because
the Powells did not seek interlocutory review within twenty days,
they were ineligible for relief.
C. While Rule 54(b) Certification May Have Been Appropriate,
the Powells Did Not Seek It in the District Court
¶26 In a case involving multiple claims for relief or
multiple parties, a party may obtain interlocutory appellate
review by asking the district court to certify a ruling as final
pursuant to rule 54(b) of the Utah Rules of Civil Procedure.52
Proper certification in compliance with rule 54(b) “force[s] the
appellate court to entertain the appeal.”53 There are three
requirements for certification under rule 54(b):
First, there must be multiple claims for
relief or multiple parties to the action.
Second, the judgment appealed from must have

54 Id. at 1101 (citation and internal quotation marks
omitted).
55 Utah R. Civ. P. 54(b) (emphasis added).
56 814 P.2d at 1103.
57 Id. (quoting Ind. Harbor Belt R.R. v. Am. Cyanamid Co.,
860 F.2d 1441, 1444 (7th Cir. 1988)); see also Weiser v. Union
Pac. R.R., 932 P.2d 596, 598 (Utah 1997) (finding certification
inappropriate where separate theories for relief all relate to a
single claim of land ownership); Bennion v. Pennzoil Co., 826
P.2d 137, 138 (Utah 1992) (“[A] claim is not separate if a
decision on claims remaining below would moot the issues on
appeal.”); Webb v. Vantage Income Props., 818 P.2d 1, 2 (Utah
1991) (dismissing certification from trial court because four
other causes of action remained pending before the trial court,
each arising from the same factual circumstances).
13 No. 20060776
been entered on an order that would be
appealable but for the fact that other claims
or parties remain in the action. Third, the
trial court, in its discretion, must make a
determination that there is no just reason
for delay of the appeal.54
¶27 It appears that these requirements are met in this
case. First, the case contains separate claims for relief. The
Powells asserted claims for medical negligence against
Dr. Cannon, SLRMC, and the Center, while Defendants requested
enforcement of the arbitration agreement.
¶28 Second, the order compelling arbitration is a “final
judgment as to one or more . . . of the claims.”55 In Kennecott
Corp. v. State Tax Commission, we explained that an order can
meet this finality requirement only if it relies on facts
different from those underlying the other claims.56 Thus,
finality depends on the “‘degree of factual overlap’” between the
order appealed from and the claims remaining before the lower
court.57 Here, there is virtually no factual overlap. The facts
regarding the enforceability of the arbitration agreement revolve
around the circumstances under which Shannon signed the agreement
on May 17, 2002. In contrast, the facts regarding the medical
negligence claims involve the decisions and the actions taken on
December 7, 2002, as Shannon gave birth. Thus, there is no
factual overlap.

58 Manwill v. Oyler, 361 P.2d 177, 178 (Utah 1961)
(explaining that the desired objective of interlocutory appeals
is to promote efficient procedure).
No. 20060776 14
¶29 Finally, the district court would have been well within
its discretion had it determined that there is “no just reason
for delay” in appealing the order compelling arbitration inasmuch
as such certification would preclude the unfortunate possibility
of requiring that the parties present their claims in two forums.
Furthermore, determining whether an arbitration clause is
enforceable is precisely the type of essential issue that is a
“necessary foundation on which the trial may proceed.”58
¶30 Despite the fact that the order compelling arbitration
and staying litigation may have been appropriate for
certification, the Powells failed to request it from the district
court. Their failure to obtain certification deprives this court
of jurisdiction over the appeal.
CONCLUSION
¶31 In conclusion, the order compelling arbitration and
staying litigation is not a final judgment from which an appeal
may be taken. We lack jurisdiction over this appeal and
therefore dismiss the appeal without reaching the substantive
issues raised by the parties.
---
¶32 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Nehring concur in Justice Parrish’s
opinion.