Grane v. Grane

• Decision Date: 04 June 1970
• Parties: , 85 Ill.Dec. 561 Wayne P. GRANE, Plaintiff-Appellant, v. Hubert GRANE, Jr., Fred C. Grane; Daniel Thomas Grane; Hubert Grane, Sr.; Grane Trucking Co., an Illinois corporation; Grane Leasing Corporation, an Illinois corporation; Grane Transportation Lines, Ltd., an Illinois corporation; Northern Illinois Truck Lines, Inc., an Illinois corporation; Skilled Services Corporation, an Illinois corporation; Harris Trust and Savings Bank, as Trustee under Trust Agreements dated
• Court: United States Appellate Court of Illinois

Page 1366

473 N.E.2d 1366

130 Ill.App.3d 332, 85 Ill.Dec. 561

Wayne P. GRANE, Plaintiff-Appellant, v. Hubert GRANE, Jr., Fred C. Grane; Daniel Thomas Grane;

Hubert Grane, Sr.; Grane Trucking Co., an Illinois

corporation; Grane Leasing Corporation, an Illinois

corporation; Grane Transportation Lines, Ltd., an Illinois

corporation; Northern Illinois Truck Lines, Inc., an

Illinois corporation; Skilled Services Corporation, an

Illinois corporation; Harris Trust and Savings Bank, as

Trustee under Trust Agreements dated June 4, 1970, Trust No.

34130, and February 9, 1971, Trust No. 34420; 1001 S.

Laramie Avenue Partnership; and Thomas J. Boodell, Jr.,

Defendants-Appellees.

No. 83-982.

Appellate Court of Illinois,

Second District.

Jan. 28, 1985.

Cassiday, Schade & Gloor, David J. Fischer, Michael G. Thomas, Chicago, for plaintiff-appellant.

Donovan & Roberts, P.C., Rodney W. Equi, Wheaton, Dennis M. O'Brien, Richard F. Hudzik, Keck, Mahin & Cate, James J. Casey, A. Benjamin Goldgar, Pfeffer, Becker, Gabric & Cerveny, Joseph F. Cerveny, Chicago, for defendants-appellees.

LINDBERG, Justice:

Plaintiff, Wayne P. Grane, appeals from an order of the circuit court of DuPage County denying his motion to stay arbitration and to conduct a hearing pursuant to section 2(b) of the Uniform Arbitration Act. (Ill.Rev.Stat.1981, ch. 10, par. 102(b).) Plaintiff contends the verified allegations in his second amended complaint established that he was fraudulently induced to sign the arbitration agreement. Because we conclude these allegations established a substantial and bona fide dispute as to the existence of an agreement to arbitrate, we reverse and remand the cause to the trial court for a section 2(b) hearing.

Plaintiff is the son of defendant Hubert Grane, Sr. (Grane, Sr.) and the brother of defendants Hubert Grane, Jr., (Grane, Jr.), Fred C. Grane and Daniel T. Grane. The corporate defendants are companies owned by the Grane family and Harris Bank, which is a trustee of certain Grane family trusts. The individual parties signed an Agreement and Understanding on December 10, 1980, which invested defendant Thomas J. Boodell, Jr. (Boodell), with the "sole authority to resolve any conflict existing between the Parties and to compromise any disputes concerning equity interests as he, in his sole judgment, after consultation with Mr. Hubert Grane, Sr., shall determine." A dispute arose concerning the division of the family businesses and plaintiff filed a complaint on June 30, 1983, seeking a declaratory judgment determining the rights, interests and liabilities of the parties in the Grane family businesses. Plaintiff also filed an ex parte petition to compel defendants to produce certain business books and records which the court granted on July 7, 1983.

In response, Grane, Jr., and certain corporate defendants filed a motion to vacate the order to compel, arguing in part that the parties had entered into an arbitration agreement requiring arbitration of all intrafamily disputes. Plaintiff thereupon filed a motion for leave to file a second amended complaint which contained a count requesting rescission of the arbitration agreement. The trial court allowed plaintiff to file the motion and the second amended complaint with the court, but reserved ruling on the decision whether to allow the motion.

Sometime during September or October 1983, Boodell began conducting an arbitration proceeding to resolve the family disputes, but plaintiff elected not to participate. On October 28, 1983, plaintiff filed a motion to stay the arbitration proceeding, contesting the validity and enforceability of the 1980 arbitration agreement which the court denied that same day. Plaintiff filed a notice of appeal from the order denying the motion to stay on November 4, 1983. The trial court denied on November 7, 1983, plaintiff's motion to stay all court and arbitration proceedings pending appeal of this cause. On November 9, 1983, plaintiff filed a motion renewing his request that the trial court grant plaintiff leave to file his second amended complaint which the court granted on November 10, 1983.

The first issue which this court must address is whether it has jurisdiction to entertain this appeal. Boodell contends that this appeal must be dismissed as taken from a nonappealable interlocutory order. Boodell argues that the purpose of facilitating arbitration which underlies the Illinois Uniform Arbitration Act (Ill.Rev.Stat.1981, ch. 10, par. 101 et seq.) is thwarted by allowing appeals from orders denying motions to stay arbitration. Citing decisions from other jurisdictions holding nonappealable orders denying motions to stay arbitration, and relying on the rule that judicial decisions of other states adopting the Uniform Arbitration Act should be given great deference to encourage uniformity, Boodell requests this court to rule that the instant interlocutory order is not appealable pursuant to the Illinois Uniform Arbitration Act. Ill.Rev.Stat.1981, ch. 10, par. 101 et seq.

Section 18 of the Illinois Uniform Arbitration Act (Ill.Rev.Stat.1981, ch. 10, par. 118) provides that "[a]ppeals may be taken in the same manner, upon the same terms, and with like effect as in civil cases." The order entered by the trial court here is interlocutory and therefore is governed by Supreme Court Rule 307 which provides that "[a]n appeal may be taken to the Appellate Court from an interlocutory order of court (1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction." (87 Ill.2d R. 307(a)(1).) The jurisdictional question thus presented is whether the trial court's denial of plaintiff's motion for a stay of arbitration is analogous to an injunction and therefore appealable as an interlocutory order.

Both parties contend and our research confirms that no Illinois court has decided this precise question. (See Annot., 6 A.L.R. 4th 652 (1981).) Boodell argues that because the Illinois arbitration statute is patterned after the Uniform Arbitration Act, we should look to and follow the decisions in other states which likewise have adopted the Uniform Arbitration Act. In the three cases cited by Boodell (School Committee of Agawam v. Agawam Educational Association (1977), 371 Mass. 845, 359 N.E.2d 956; Miyoi v. Gold Bond Stamp Co. Employees Retirement Trust (1972), 293 Minn. 376, 196 N.W.2d 309; Hodes v. Comprehensive Health Associates, P.A. (1983), 9 Kan.App.2d 36, 670 P.2d 76), however, the courts specifically based their decisions on the fact that their state arbitration statutes enumerated the orders which were appealable and did not include an order denying a motion to stay arbitration as an appealable order. Likewise, section 19(a) of the Uniform Arbitration Act on which these state statutes are based enumerates certain orders from which immediate appeals can be taken, but fails to include an order denying a motion to stay arbitration. See 7 Uniform Laws Annotated 77 (1978).

As emphasized by plaintiff, the Illinois legislature apparently elected not to adopt the language of section 19(a) of the Uniform Arbitration Act on appeals and instead adopted with some variation the language of section 19(b) of the Uniform Arbitration Act that appeals can be taken as they are allowed in civil cases. (Ill.Rev.Stat.1981, ch. 10, par. 118.) Based upon the distinction between the language governing appeals in the Illinois and Uniform Acts, this court need not follow cases construing different statutory language of other state arbitration acts which are patterned after the Uniform Arbitration Act.

The most instructive Illinois decision on this question is School District No. 46 v. Del Bianco (1966), 68 Ill.App.2d 145, 215 N.E.2d 25, wherein this court considered whether an order denying a party's motion to compel arbitration and to stay court proceedings was appealable. In ruling that the order was appealable, the Del Bianco court recognized that the order was not specifically enumerated in Supreme Court Rule 31 (Ill.Rev.Stat.1963, ch. 110, par. 101.31), the predecessor statute to Supreme Court Rule 307. (87 Ill.2d R. 307.) Despite its absence from the statute, however, the order was interpreted by this court to be appealable as "amount[ing] to granting or refusing injunctive relief." (68 Ill.App.2d 145, 152, 215 N.E.2d 25, 28.) The Del Bianco rule recently has been cited favorably by this court. See J & K Cement Construction, Inc. v. Montalbano Builders, Inc. (1983), 119 Ill.App.3d 663, 75 Ill.Dec. 68, 456 N.E.2d 889; Kelso-Burnett Co. v. Zeus Development Corp. (1982), 107 Ill.App.3d 34, 62 Ill.Dec. 789, 437 N.E.2d 26; see also Notaro v. Nor-Evan Corp. (1983), 98 Ill.2d 268, 74 Ill.Dec. 591, 456 N.E.2d 93 (order denying defendant's motion to dismiss lawsuit and compel arbitration was an appealable, interlocutory order).

Boodell seeks to distinguish the Del Bianco court's analogy of a motion to stay court proceedings to an interlocutory injunction on the basis that here, the order appealed from was a denial of a motion to stay arbitration, while Del Bianco involved the denial of a motion to compel arbitration. This distinction was considered persuasive by the Court of Appeals for the Seventh Circuit in construing section 1292(a)(1) of the United States Code (28 U.S.C. § 1292(a)(1) (1976)), which authorizes the immediate appeal of orders granting or denying preliminary injunctions. (Timberlake v. Oppenheimer & Co., Inc. (7th Cir.1984), 729 F.2d 515.) This language is nearly identical to that contained in Supreme Court Rule 307 governing interlocutory appeals of orders granting or denying injunctions. In Timberlake, the plaintiff filed suit in federal court against the brokerage house alleging churning and joined the pendent claims under state law. The defendants moved the district court for an order compelling arbitration of the pendent claims, but staying the arbitration until the court disposed of the plaintiff's federal...