Kentucky

Std. of Review: Appellate review of an otherwise unappealable interlocutory order

By Michael Stevens

Standard of review re unappelable interlocutory order.

Under KRS 417.060, a person may seek a judicial order to compel arbitration upon a showing that a valid arbitration agreement exists and that the opposing party refuses to arbitrate. If the opposing party challenges the existence of a valid arbitration agreement, the circuit court ?shall proceed summarily to the determination of the issue so raised.? KRS 417.060(1).

Appellate review of an otherwise unappealable interlocutory order arises under KRS 417.220(1)(a). The standard of review by our Court from appeals arising under this statute was discussed in Conseco Finance Servicing Corp. v. Wilder, 47 S.W.3d 335, 340 (Ky. App. 2001) as follows:

It may also be well to note that our review of a trial court?s ruling in a KRS 417.060 proceeding is according to usual appellate standards. That is, we defer to the trial court?s factual findings, upsetting them only if clearly erroneous or if unsupported by substantial evidence, but we review without deference the trial court?s identification and application of legal principles. . . .

Here, the circuit court made no factual findings nor can we determine whether the circuit court?s ruling was based upon the application of legal principles justifying a de novo review by this Court. The circuit court?s order does indicate that the court ?considered the record? and ?heard arguments of counsel.? Under the circumstances presented in this case, in reliance upon Conseco, we believe the circuit court is bound by Kentucky Rules of Civil Procedure (CR) 52.01, which mandates that a court set forth specific findings of fact and separate conclusions of law in its order or judgment.

Full post as published by Kentucky Cases on December 27, 2010 (boomark / email).