Hodes v. Comprehensive Health Associates, P.A., 55027
| Decision Date | 13 October 1983 |
| Docket Number | No. 55027,55027 |
| Citation | 9 Kan.App.2d 36,670 P.2d 76 |
| Parties | Herbert C. HODES, M.D., Appellant, v. COMPREHENSIVE HEALTH ASSOCIATES, P.A., Appellee. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
There is no right to an immediate appeal from an order denying an application for stay of arbitration made under K.S.A. 5-402(b).
Douglas Lancaster and Charles E. Kelly, of Shughart, Thomson & Kilroy, Overland Park, for appellant.
C. Maxwell Logan, of Logan & Martin, Olathe, for appellee.
Before REES, P.J., ABBOTT, J., and HARRY G. MILLER, District Judge Retired, Assigned.
On August 3, 1981, plaintiff, a physician, filed a petition alleging he and defendant, a medical clinic, were parties to a November 20, 1977 written personal services agreement which expired November 20, 1979, and that the parties entered into new oral agreements. Plaintiff further alleged breach of contract by defendant and existence of a controversy between the parties concerning present viability of the written agreement. The relief sought by plaintiff was twofold: judicial determination of "the validity and/or existence" of the written agreement and judgment against defendant for the amount owed by defendant to plaintiff for his services rendered during the period from November 20, 1977 to July 19, 1981, to be determined by a judicially ordered accounting.
Plaintiff's commencement of this lawsuit was precipitated by defendant's July 27, 1981 demand for determination by arbitration of the fair value of the professional practice of a "second office" and of the unamortized cost of the "second office's" leasehold improvements, equipment and furniture. Defendant founded its demand for arbitration upon a paragraph of the parties' written agreement which reads:
On August 6, 1981, following the filing of his petition, plaintiff first filed an application for a stay of arbitration under K.S.A. 5-402(b). He then filed on that same day an application for a temporary restraining order which was immediately issued ex parte. By the express language of the temporary restraining order application and its supporting memorandum, the relief sought was that defendant be restrained from prosecuting the demanded arbitration proceedings until hearing and decision on the K.S.A. 5-402(b) application for stay. Evidentiary hearings were subsequently held. Plaintiff now has taken an appeal from the trial court's order memorialized by a journal entry reciting:
....
"IT IS BY THE COURT ORDERED that the temporary restraining order previously entered herein is hereby dissolved and the parties are hereby directed to proceed with arbitration ...."
We conclude the appeal presented is from an order denying an application to stay arbitration made under K.S.A. 5-402(b) and the trial court order cannot be construed as an order refusing or dissolving an injunction. Plaintiff obtained the relief he sought by the application for a temporary restraining order; defendant was restrained from prosecution of the arbitration proceedings until the hearing and decision on the K.S.A. 5-402(b) stay application.
The right to an appeal is strictly statutory in nature. It is our duty to raise the question of jurisdiction on our own motion. In re K-Mart Corp., ...
To continue reading
Request your trial
-
Baxter v. John Weitzel, Inc.
...shall order arbitration if found for the moving party, otherwise, the application shall be denied." In Hodes v. Comprehensive Health Associates, 9 Kan.App.2d 36, 38, 670 P.2d 76 (1983), this court held: "K.S.A. 5-418(a)(1) and (2) set forth the statutory right to immediate appeal from order......
-
Gergel v. High View Homes, LLC
...regard, we join other jurisdictions that have construed the Uniform Arbitration Act in the same manner. Hodes v. Comprehensive Health Assoc., P.A., 9 Kan.App.2d 36, 670 P.2d 76 (1983)(collecting cases); J.M. Huber Corp. v. Main-Erbauer, Inc., 493 A.2d 1048 (Me.1985); Sch. Comm. v. Agawam Ed......
-
Wesley Retirement Services, Inc. v. Hansen Lind Meyer, Inc., 97-1027
...include orders compelling arbitration, appeal was not available until completion of arbitration); Hodes v. Comprehensive Health Associates, P.A., 9 Kan.App.2d 36, 670 P.2d 76, 77-78 (1983) (holding statute allows appeals from denial of arbitration, but not from order compelling arbitration)......
-
Kansas Gas and Elec. Co. v. Kansas Power and Light Co.
...to compel arbitration appealable as a matter of right. In support of its argument, KPL relies on Hodes v. Comprehensive Health Associates, 9 Kan.App.2d 36, 670 P.2d 76 (1983). In Hodes, the court held that a denial of a motion to stay arbitration is not an appealable order. The court reason......
-
Waiting for Judgment Day: Negotiating the Interlocutory Appeal in 8 Easy Lessons
...113, 115, 415 P.2d 223 (1966). [19] Fredricks v. Foltz, 221 Kan. 28, 557 P2d 1252 (1976). [20] Hodes v. Comprehensive Health Assocs, 9 Kan. App. 2d 36, 670 P.2d 76 (1983); Max Rieke & Bros. Inc. v. Van Deurzen & Assocs., 34 Kan. App. 2d 340, 118 P3d 704 (2005). [21] AMCO Ins. Co. v. Beck, 2......
-
A Three-year Survey of Colorado Appellate Decisions on Arbitration-part I
...in other jurisdictions, and also found support in parallel provision of the FAA. Id., citing Hodes v. Comprehensive Health Assoc., P.A., 670 P.2d 76 (Kan.App. 1983); JM Huber Corp. v. Maine Erbauer, Inc., A.2d 1048 (Me. 1985); Sch. Comm. v. Agawam Educ. Ass'n, 359 N.E.2d 956 (Mass. 1977); 9......