Schroud v. Van C. Argiris & Co.

• Decision Date: 21 November 1979
• Docket Number: No. 79-459,79-459
• Citation: 34 Ill. Dec. 428,398 N.E.2d 103,78 Ill.App.3d 1092
• Court: United States Appellate Court of Illinois
• Parties: , 34 Ill.Dec. 428 Donald F. SCHROUD, Plaintiff-Appellee, v. VAN C. ARGIRIS & CO., Defendant-Appellant.

Page 103

398 N.E.2d 103

78 Ill.App.3d 1092, 34 Ill.Dec. 428

Donald F. SCHROUD, Plaintiff-Appellee, v. VAN C. ARGIRIS & CO., Defendant-Appellant.

No. 79-459.

Appellate Court of Illinois, First District, Fourth Division.

Nov. 21, 1979.

Rehearing Denied Dec. 28, 1979.

James A. Stamos, Chicago, for defendant-appellant.

Donald L. Johnson, William Biederman, Michael B. Weininger, Chicago, for plaintiff-appellee.

ROMITI, Justice:

The plaintiff, after arbitration pursuant to the by-laws of the Chicago Real Estate Board (hereinafter Board), was awarded the commissions claimed. Over ninety days after the delivery of the award the defendant, in response to the plaintiff's complaint in the circuit court to confirm, filed a motion to dismiss on the ground that since the plaintiff had not been a member of the Board when the controversy arose, the Board lacked jurisdiction. The court confirmed the award. While we agree with the court that the Board had jurisdiction, we find that neither the trial court nor this court could properly consider that issue since the defendant failed to attack the award within the ninety days required by statute and thus, for that reason alone, the award must be affirmed.

The plaintiff on April 28, 1977 filed a complaint for declaratory judgment and other relief against the defendant. On May 4, 1977, the defendant moved to dismiss the complaint, asserting, Inter alia, that the court had no jurisdiction since the parties, by reason of their membership in the Board, had entered into an agreement to submit any controversy between them to arbitration in accordance with the Illinois Uniform Arbitration Act. Article VIIA, Section 2(a) of the By-Laws of the Chicago Real Estate Board provides:

"The Arbitration Committee shall have jurisdiction over any controversy between members related to a commission claimed or charged by or paid to such members or to any other matters arising out of their business as brokers or agents."

On May 5, 1977 the trial court entered an order finding that the Board had exclusive jurisdiction and dismissed the complaint as being premature, with leave to the plaintiff, without prejudice, to file an amended complaint within 28 days. It also found that the order was a final order and that there was no just reason to delay the enforcement of the order. On May 25, 1977, the plaintiff moved to vacate the dismissal order on the ground that in fact the plaintiff was not a member of the Board and for that reason the Board lacked jurisdiction over the controversy. (Plaintiff was not a member because the defendant, while the plaintiff's employer, had failed to pay the plaintiff's dues.) The defendant responded to this motion by contending that the plaintiff, by filing a complaint with the Board on May 4, 1977 and an emergency motion on May 13, 1977 submitted to the jurisdiction of the Board.

On June 29, 1977 the court vacated the May 5, 1977 order of dismissal and allowed the plaintiff 28 days within which to file a complaint. On July 28, 1977 the plaintiff filed his amended complaint. The next day he became a member of the Board. On September 23, 1977 the defendant moved to dismiss the complaint Inter alia because the Board had jurisdiction. On September 30, 1977, the plaintiff refiled its complaint with the Board. In a move inconsistent with its prior position, the defendant, on October 17, 1977, moved to dismiss the complaint before the Board on the grounds it lacked jurisdiction because the plaintiff was not a member at the time the cause of action arose or when the complaint was filed (this latter contention is, obviously, factually incorrect since the plaintiff became a member on July 29 and filed the second complaint on September 30). The defendant filed an answer in the arbitration proceedings on November 17, 1977, after being assured by the Board that this would not prejudice the motion to dismiss.

On November 1, 1977 the defendant had filed in court an amended motion to dismiss deleting as a ground for dismissal the allegation that the Board had exclusive jurisdiction, stating in the amended motion that when the first motion was filed the defendant had been under the erroneous impression that the plaintiff was a member of the Board. However, despite the fact that the amended motion had apparently deleted the contention that the Board had exclusive jurisdiction, the court, on November 22, 1977, granted the defendant's motion to dismiss (without prejudice) on the ground that "the court being advised by the plaintiff that the issues raised in plaintiff's complaint are now subject to the arbitration facilities of the Chicago Real Estate Board." This order was drafted by the defendant's attorney. Indeed, defendant's attorney stated before the Board that it had been an agreed order but that it was entered with the knowledge there was a pending motion to dismiss before the Board.

On February 14, 1978, nearly ten months after the plaintiff first filed the action in court, the Board conducted its hearing. The Board after hearing arguments concluded that the provision of section 2(a) of the by-laws means that if the parties are members at the time of the filing of the complaint, the Board has jurisdiction. The defendant did not deny at the hearing that the commissions were due.

On May 17, 1978 the Board rendered its decision finding that it had jurisdiction and that the defendant had admitted liability for the $13,065 claimed on commissions paid the defendant and awarded that sum to the plaintiff. The defendant received a copy of the order on the same date.

On June 14, 1978 the plaintiff filed a complaint to confirm the award. On July 20, 1978 the defendant filed a motion to dismiss contending that since it had ninety days in which to file a motion to vacate, the complaint was premature. On August 4, 1978, the court denied the motion to dismiss and granted the defendant 28 days to answer the complaint. On August 30, 1978, within the 28-day period but two weeks after the 90-day period had expired, the defendant filed an answer admitting that the award had not been paid, stating that it had not been paid because the Board had no jurisdiction and asking that the complaint be dismissed. On October 6, 1978, the plaintiff moved to strike the affirmative defense and for entry of judgment on the pleadings on the ground the defendant had failed to contest the award within the statutory period. The court granted the motion, apparently on the ground the Board had jurisdiction.

I.

Under section 12(b) of the Uniform Arbitration Act (Ill.Rev.Stat. 1977, ch. 10, par. 112(b)), a party, if it desires to have an arbitration award set aside, must file its motion within ninety days after the delivery of a copy of the award. The filing of a petition to confirm before the end of the ninety day period does not extend the ninety day statutory period within which a request for vacation of the award must be filed. (Bloom v. Landy (1979), 72 Ill.App.3d 383, 389 N.E.2d 1286, 27 Ill.Dec. 878; Ill.Rev.Stat.1977, ch. 10, pars. 111, 112.) In the present case the award notice was delivered on May 17, 1978. On June 14, 1978 the plaintiff filed his complaint to confirm. Defendant's answer attacking the award was not filed until August 30, 1978, well beyond the ninety day statutory period prescribed by section 12 of the Act. We find, as we did in Bloom, that by failing to move for vacation of the award in a timely manner the defendant waived any right to challenge the award.

We are aware that the trial court on August 4, 1978 entered an order allowing the defendant to file its answer within 28 days and that the defendant's answer was filed within the allotted period, although after the 90 day period permitted by statute. We find nothing in this statute to indicate that the ninety day period in which to attack the award can be extended by the court. Accordingly, we hold that while the trial court's order of August 4, 1978 allowing the defendant 28 days in which to plead was certainly effective to permit the defendant to raise any issues which did not attack the award, the order did not and could not purport to extend the ninety day period provided by statute. Moreover, while the defendant in its answer to the motion to strike did in part rely on the extension of time granted by the trial court, it did not raise the issue on appeal or attempt in its brief to show that despite the clear language of the statute and the defendant's equally clear failure to file its attack on the award within ninety days, the court has jurisdiction to consider the validity of the award. Accordingly, the contention is waived. Ill.Rev.Stat.1977, ch. 110A, par. 341(e)(7).

The defendant in its answer to the motion to strike also contended that it could attack the award at any time, either directly or collaterally, whether timely or otherwise, since the Board lacked subject matter jurisdiction. While the defendant has not raised this contention on appeal we will address it briefly because of its importance. The defendant is contending either that there was no agreement of the parties to arbitrate because the plaintiff had not been a member of the Board or that at the very least the arbitrators exceeded their authority. Both of these contentions are proper defenses to an award. (Garver v. Ferguson (1978), 63 Ill.App.3d 453, 20 Ill.Dec. 423, 380 N.E.2d 401, Reversed 76 Ill.2d 1, 27 Ill.Dec. 773, 389 N.E.2d 1181, court finding arbitrators did not exceed powers; Board of Education of Community Unit School Dist. No. 4, Champaign County v. Champaign Educational Assn. (1973), 15 Ill.App.3d 335, 304 N.E.2d 138; Allstate Insurance Co. v. Johnson (1968), 103 Ill.App.2d 485, 243 N.E.2d 5 (Abst.)), If timely and properly raised. (Ill.Rev.Stat.1977, ch....