Bachmann v. Kent

• Decision Date: 12 December 1997
• Docket Number: No. 1-96-0369,1-96-0369
• Citation: 228 Ill.Dec. 299,689 N.E.2d 171,293 Ill.App.3d 1078
• Parties: , 228 Ill.Dec. 299 Judith BACHMANN, Plaintiff-Appellee, v. Waunita KENT, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 171

689 N.E.2d 171

293 Ill.App.3d 1078, 228 Ill.Dec. 299

Judith BACHMANN, Plaintiff-Appellee, v. Waunita KENT, Defendant-Appellant.

No. 1-96-0369.

Appellate Court of Illinois First District, Sixth Division.

Dec. 12, 1997.

Rehearing Denied Jan. 28, 1998.

Parillo, Weiss and O'Halloran, Chicago (Keely Truax, of counsel), for Defendant-Appellant.

Buikema, Hiskes, Dillner, O'Donnell and Marovich, Ltd, Chicago (Michael J. Marovich, of counsel), for Plaintiff-Appellee.

Justice QUINN delivered the opinion of the court:

This case is brought on appeal from a January 8, 1996, order of the circuit court striking defendant's rejection of an arbitration award on the ground that it was not signed by an attorney, denying defense counsel's request to sign the notice of rejection, and entering judgment on the arbitration award in favor of plaintiff. Defendant contends that (1) the trial court erred in debarring her rejection of the arbitration award; (2) the trial court erred in denying defense counsel's request to sign the notice of rejection; (3) the court-imposed sanction was excessive; and (4) the sanction violated the Illinois Constitution and the enabling act. 735 ILCS 5/2-1004A (West 1994).

On December 29, 1994, plaintiff, Judith Bachman, filed a complaint against defendant, Waunita L. Kent, and a jury demand alleging that she was injured in a traffic accident as a result of defendant's negligence. Plaintiff filed and served a deposition notice, but defendant failed to appear. As a result, the trial court then barred defendant from testifying at the arbitration hearing as a sanction, and also struck her affirmative defenses as a discovery sanction.

On October 25, 1995, the case was arbitrated, and an award was entered in favor of plaintiff in the amount of $12,000. Defendant failed to attend the arbitration hearing, despite plaintiff's Request to Produce. Defendant's attorney from Parillo, Weiss & O'Halloran was present. On November 6, 1995, defendant filed both her notice of rejection of the arbitration award and a request for a jury trial. The notice of rejection was not signed by defendant, nor her attorney of record, but rather by some other individual. The signature on the notice did not indicate whether this individual was an attorney. The same signature appeared as a certification on defendant's appearance and jury demand, although on that document it was followed by illegible initials without any further indication of the identity of the individual who signed. Defendant's appearance and answer were both signed in the firm's name, and not in the name of an individual attorney.

On November 16, 1995, plaintiff filed a motion to strike defendant's rejection of the arbitration award on the ground that defendant did not appear in person at the arbitration hearing to testify in plaintiff's case. On December 6, 1995, plaintiff filed another motion to strike defendant's rejection of the arbitration award on the additional ground that the notice of rejection was signed by a non-attorney. On January 8, 1996, the court entered an order striking defendant's rejection of the arbitration award on the ground that it was not signed by an attorney. The trial court denied defense counsel's request to sign the notice of rejection, and entered judgment on the arbitration award in the amount of $12,000. Defendant appeals from this order.

Before addressing the merits of this appeal, we note that the record consists only of the common law record and one two-page supplemental record consisting only of plaintiff's motion to compel defendant's deposition. While we may refer to the common law record in addressing the issues defendant raises, any doubts raised by insufficiencies in the record must be resolved against defendant-appellant, whose obligation it was to present this court with a sufficiently complete record of the proceedings. Williams v. Dorsey, 273 Ill.App.3d 893, 896, 210 Ill.Dec. 310, 652 N.E.2d 1286 (1995).

Also, both defendant and plaintiff raise several arguments which are unsupported by citation to the record or to pertinent authority. Therefore, these arguments are waived. People v. Pecor, 153 Ill.2d 109, 180 Ill.Dec. 50, 606 N.E.2d 1127 (1992).

First, defendant contends that the trial court erred in striking her rejection of the arbitration award. We disagree. The trial court properly struck defendant's rejection of the arbitration award where defendant failed to appear at the arbitration hearing, and the notice of rejection was signed in violation of Supreme Court Rule 137. 134 Ill.2d R. 137. Absent an abuse of discretion, the court's imposition of a sanction will not be disturbed on review. State Farm Insurance Co. v. Gebbie, 288 Ill.App.3d 640, 644, 224 Ill.Dec. 280, 681 N.E.2d 595 (1997).

Under Supreme Court Rule 237, the appearance of a party may be required by serving the party with notice that designates the person who is required to appear. 166 Ill.2d R. 237(b). Supreme Court Rule 90(g) states the following:

"Compelling Appearance of Witness at Hearing. The provisions of Rule 237, herein, shall be equally applicable to arbitration hearings as they are to trials. The presence of a party may be waived by stipulation or excused by court order for good cause shown not less than seven days prior to the hearing. Remedies upon a party's failure to comply with notice pursuant to Rule 237(b) may include an order debarring that party from rejecting the award." 145 Ill.2d R. 90(g).

The attendance of counsel at an arbitration hearing preserves the right to reject an arbitration award. Dorsey, 273 Ill.App.3d at 900, 210 Ill.Dec. 310, 652 N.E.2d 1286. However, the attendance of counsel does not preclude the trial court from entering an order debarring a party from rejecting the award as a sanction. Knight v. Guzman, 291 Ill.App.3d 378, 380, 225 Ill.Dec. 677, 684 N.E.2d 152 (1997); Gebbie, 288 Ill.App.3d at 643, 224 Ill.Dec. 280, 681 N.E.2d 595. Under Supreme Court Rule 90(g), it is within the trial court's authority to bar a party from rejecting an award as a sanction for failing to comply with a notice to appear under Rule 237(b). 145 Ill.2d R. 90(g); 166 Ill.2d R. 237(b); Gebbie, 288 Ill.App.3d at 643, 224 Ill.Dec. 280, 681 N.E.2d 595. When a party is debarred from rejecting an arbitration award, the filing of a notice of rejection is ineffective. 145 Ill.2d R. 93(a).

In the instant case, plaintiff served defendant with a Rule 237 notice to appear at the arbitration hearing, but defendant failed to appear. There is no indication in the motions and answers in the record that defendant moved to have her presence waived or excused. As we do not have the report of proceedings of the arbitration hearing, we will presume that defendant's failure to appear was unexcused. Thus, the trial court's order debarring defendant's rejection of the arbitration award was not an abuse of discretion.

Defendant argues that plaintiff's Rule 237 notice did not apply to the arbitration hearing because it was titled "RULE 237 NOTICE TO PRODUCE AT TRIAL," and did not specifically refer to arbitration (emphasis added). However, this same argument has been rejected in Dorsey, a case involving the same law firm here, Parillo, Weiss & O'Halloran. Dorsey, 273 Ill.App.3d at 897, 210 Ill.Dec. 310, 652 N.E.2d 1286. The law firm representing defendant in this case failed to cite this case in its opening brief and failed to respond to plaintiff's citation of the case in defendant's reply brief, despite its affirmative duty under the Rules of Professional Conduct to cite to this court such adverse precedent. See 134 Ill.2d R. 3.3(a)(3). Dorsey is dispositive of this issue, and so we hold that the Rule 237 notice filed by plaintiff applied to the arbitration hearing.

Defendant also contends that she could not have reasonably interpreted the notice to apply to the arbitration hearing, because the Rule 237 notice was filed six months before the Sixth Municipal District even started an arbitration program. This argument also is unavailing. Once the case was transferred to arbitration, and no trial was scheduled, the notice to appear applied to arbitration. See Dorsey, 273 Ill.App.3d at 897, 210 Ill.Dec. 310, 652 N.E.2d 1286.

Defendant further argues that plaintiff was not prejudiced by her failure to appear because she was barred from testifying as a sanction for her discovery violation pursuant to the court's order. This issue also has been recently addressed, in yet another case involving the same law firm and the same attorney on appeal. In Gebbie, 288 Ill.App.3d at 643, 224 Ill.Dec. 280, 681 N.E.2d 595, the court rejected the defendant's argument that his failure to appear personally at the arbitration hearing was excused because the court had barred him from presenting evidence at the arbitration. The court held that defendant was still obligated to appear because, although the lower court barred defendant from presenting his case, it did not bar the plaintiff from calling the defendant as an adverse party. Gebbie, 288 Ill.App.3d at 643-644, 224 Ill.Dec. 280, 681 N.E.2d 595. The court held, "[d]efendant's willful violation of discovery cannot excuse his failure to appear personally at the arbitration hearing." Gebbie, 288 Ill.App.3d at 643, 224 Ill.Dec. 280, 681 N.E.2d 595.

Similarly, in the instant case, the fact that defendant was barred from testifying in her own behalf at the arbitration hearing as a result of her discovery violation did not excuse her from appearing at the hearing. Defendant mistakenly interprets the trial court's order as barring her from testifying at all. However, as in Gebbie, plaintiff was not barred from calling defendant as an adverse witness.

Defendant also mistakenly argues that plaintiff was not prejudiced by defendant's failure to appear because the only issues remaining in the arbitration, proximate causation and damages, were peculiarly within plaintiff's knowledge. On the contrary, d...