We often wonder why an opinion was reported; perhaps this memorandum should have been.

Krasinski sued Goldstein. Goldstein moved to compel arbitration pursuant to A.R.S. 12-1502. The court granted the motion and dismissed the action. Krasinki filed an appeal; the Court of Appeals dismissed it.

The catch is that the statute requires a court, when compelling arbitration, to stay the case rather than to dismiss it. No one, apparently, had pointed this out to the trial court. Since the court shouldn’t have dismissed, Division Two ruled that it didn’t: “the trial court’s order is not final and is instead an interlocutory order compelling arbitration.”

Which is the point of law that makes the case interesting. A dismissal, it turns out, may or may not be a dismissal. Its a dismissal unless it shouldn’t have been, in which case it wasn’t, in which case an error of law that the Court of Appeals normally exists to correct becomes a non-event. And the way to find out whether its a dismissal or not is to appeal it and see whether the appeal is dismissed. If it isn’t, you guessed right; if it is, you guessed wrong but can try again later. And if nobody seeks appellate relief, nobody ever quite knows what the order was – a bit like those sub-atomic particles that don’t quite exist until you look at them.

You can, actually, appeal an arbitration order, by including Rule 54(b) language in it. The court points this out and seems to say that Krasinski should have asked for that. Since 54(b) language in a dismissal makes no sense, what the court apparently means is that he should have read the statute and sought the right order in the first place, which is of course correct.

In fairness to the court, there is a problem here. You’re not supposed to be able to appeal an order compelling arbitration and you ought not to be able to get around that by inducing or allowing the court to enter the wrong order. But the answer is not to pretend that things are always what they should be in this, the best of all possible worlds. The answer is not to throw the very nature of court orders into doubt and debate. The answer is to recognize an indisputable error of law, vacate the dismissal, and remand with instructions to enter a stay.