Erbach and Haunroth Realtors v. Burnett
| Decision Date | 25 July 1975 |
| Docket Number | No. 60374,60374 |
| Citation | 31 Ill.App.3d 236,333 N.E.2d 592 |
| Court | United States Appellate Court of Illinois |
| Parties | ERBACH & HAUNROTH REALTORS, Plaintiff-Appellee, v. Perle BURNETT, Defendant-Appellant. |
George E. Faber, Chicago, for defendant-appellant.
Barry B. Kreisler, Chicago, for plaintiff-appellee.
Defendant appeals from an order of the circuit court entered on February 13, 1974 confirning the award of an arbitrator in favor of plaintiff and an order entered March 7, 1974 denying defendant's motion to set aside the order of February 13, 1974. Defendant's briefs are addressed only to the order of February 13, 1974. Hence, we shall ignore the notice of appeal on the March 7, 1974 order.
Inasmuch as this cause had its inception in the complaint of plaintiff to confirm the award of an arbitrator in the amount of $4,841 in favor of plaintiff and against defendant, under Section 11 of the Arbitration Act of Illinois (Ill.Rev.Stat.1973, ch. 10 par. 111), the court ws necessarily confined in its consideration of the pleadings and arguments to the provisions of the Arbitration Act. Section 12 and Section 13 of that Act (Ill.Rev.Stat.1973, ch. 10 pars. 112 and 113), spell out in detail the remedies available to a party against whom an arbitrator has made an award, as follows:
' § 12. Vacating an award.
(a) Upon application of a party, the court shall vacate an award where:
(1) The award was procured by corruption, fraud or other undue means;
(2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any one of the arbitrators or misconduct prejudicing the rights of any party;
(3) The arbitrators exceeded their powers;
(4) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of Section 5, as to prejudice substantially the rights of a party; or
(5) There was no arbitration agreement and the issue was not adversely determined in proceedings under Section 2 and the party did not participate in the arbitration hearing without raising the objection; but the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.
§ 13. Modification or correction of awards.
(a) Upon application made within 90 days after delivery of a copy of the award to the applicant, the court shall modify or correct the award where:
(1) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;
(2) The arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
(3) The award is imperfect in a matter of form, not affecting the merits of the controversy.
(b) If the application is granted, the court shall modify and correct the award so as to effect its intent and shall confirm the award as so modified and corrected. Otherwise, the court shall confirm the award as made.
(c) An application to modify or correct an award may be joined in the alternative with an application to vacate the award.'
The trial court did not have before it the record before the arbitrator and was not entitled to it. Neither is this court. The entire record in this court is relatively short and consists of a very simple complaint which alleges that the parties hereto entered into a real estate listing contract which contained a provision for arbitration in the event of a controversy; that a controversy arose; the parties proceeded to arbitration; that the arbitrator rendered an award in favor of the plaintiff; and that the defendant had not paid the award and prays judgment against the defendant in the amount of the award. There is no suggestion in the record that defendant resisted arbitration in any manner as she had a right to do under Section 2 1 of the Arbitration Act. Defendant filed an answer to the complaint and affirmative defenses. She alleged therein that the 'legal title to the parcel of real property which was the basis of the arbitration award referred to in plaintiff's complaint is held in a land trust'; that she is only one of several beneficiaries of the land trust and had no authority to enter into the alleged agreement on behalf of the other beneficiaries and that therefore, if she 'is liable to the plaintiff, she is liable to it only to the extent of her beneficial interest in that land trust.' Defendant further alleged that the 'agreement' which was the basis of the arbitration award 'was neither executed by nor approved by' her and therefore 'no contract ever arose between the plaintiff and the defendant.' There followed a series of motions by both parties which the trial court apparently took with the case. No orders were entered on any of the motions, the first order in the record being the order of February 13, 1974 confirming the award. That order is as follows:
'This matter coming on to be heard as previously set by this court and the court having heard arguments of counsel and being advised in the premises,
It is hereby ordered that the arbitrator's award is hereby confirmed.'
This is the order appealed from.
Nowhere in her answer or affirmative defenses had defendant attempted to avail herself of the grounds to vacate or modify the arbitrator's award. We believe we could affirm the trial court's confirmation of the award on this ground alone, but feel it advisable to consider the respective contentions of the parties evidenced by the briefs filed herein. No oral argument was heard.
Defendant contends, and it is her sole contention on appeal, that the listing agreement signed by her was void and unenforceable because she was only a one-third beneficial...
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