Williams v. Dorsey

• Decision Date: 30 June 1995
• Docket Number: No. 1-94-0840,1-94-0840
• Citation: Williams v. Dorsey, 652 N.E.2d 1286, 273 Ill.App.3d 893, 210 Ill.Dec. 310 (Ill. App. 1995)
• Parties: , 210 Ill.Dec. 310 Delphine WILLIAMS, et al., Plaintiffs-Appellees, v. Rannie DORSEY, Defendant and Counterplaintiff-Appellee, Andrea Allen et al., Defendants and Counterdefendants-Appellants; Andrea Stamps, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 1286

652 N.E.2d 1286

273 Ill.App.3d 893, 210 Ill.Dec. 310

Delphine WILLIAMS, et al., Plaintiffs-Appellees, v.Rannie DORSEY, Defendant and Counterplaintiff-AppelleeAndrea Allen et al., Defendants and Counterdefendants-Appellants; Andrea Stamps, Defendant-Appellant.

No. 1-94-0840.

Appellate Court of Illinois,

First District,

Second Division.

June 30, 1995.

Parrillo, Weiss & O'Halloran(Keely Truax, of counsel), Chicago, for defendants/counter-defendants/appellants.

Michael D. Golden, Chicago, for plaintiff-appelleeDelphine Williams.

Garretson & Santora(Michael C. O'Neill, of counsel), Chicago, for defendant/counter-plaintiff/appelleeRannie Dorsey and plaintiffs/appelleesGreta Jones, Adrean Jones and Valerie Dorsey.

Jacobson & Sorkin, Ltd., Chicago, for counter-plaintiff/appelleeRannie Dorsey.

Presiding Justice SCARIANOdelivered the opinion of the court:

On September 29, 1992, counterplaintiff Rannie Dorsey(Dorsey) filed a complaint in the circuit court of Cook County seeking $15,000 in damages from defendantsAndrea Allen(Allen) and Larry Stamps(Stamps) for injuries she allegedly sustained in a car accident on October 1, 1990.Dorsey claimed that Allen's negligent driving caused the collision of their cars at the intersection of Lamon Avenue and Walton Street in the City of Chicago.Stamps owned the car Allen was driving.(Hereinafter, Stamps and Allen are collectively referred to as defendants.)

Two other complaints were filed for injuries allegedly incurred as a result of the accident.On February 24, 1992, Greta Jones, Adrian Jones, and Valerie Dorsey filed a complaint against Andrea Stamps(a/k/a Andrea Allen) for injuries allegedly sustained in the same accident.They sought $10,056.95 in damages.On March 20, 1992, Delphine Williams, Dorsey's passenger on October 1, 1990, filed a two-count complaint seeking $15,000 in damages for her injuries resulting from the collision.She named Dorsey, Allen, and Stamps as defendants.Dorsey subsequently filed a "counterclaim" for contribution against Allen and Stamps.Dorsey was later granted leave to amend her complaint for contribution to read as a cross-claim.

Several unsuccessful attempts at service of process on defendants were made.However, on July 1, 1992, defendants filed their answer, counterclaim, and jury demand in Dorsey's cross-claim action.The circuit court issued an order consolidating the cases arising out of the car accident.On August 27, 1992, and September 10, 1992, defendants answered the complaints in the consolidated actions, each time demanding a jury trial.(See735 ILCS 5/2-1105(West 1992).)The trial court transferred the cases to mandatory arbitration pursuant to Supreme Court Rules.See134 Ill.2d R. 86 et seq.

On August 26, 1993, the panel of arbitrators unanimously found in favor of counterplaintiff Dorsey, and plaintiffs Williams, and Greta Jones and against defendant Allen.They awarded Dorsey $5,500 for her personal injury claim and $2,556.95 for her property damage claim; they awarded $7,000 to Williams, and $2,890 to Greta Jones.¹They noted on the award that defendants were not present at the proceeding, even though a Rule 237 notice had been filed on June 29, 1993, on behalf of Greta Jones and Dorsey.They also noted that Greta Jones did not appear despite the filing of a Rule 237 notice to appear by defendants' attorney.

Defendants filed their notice of rejection on September 3, 1993.On September 15, Williams filed a motion for sanctions, asking the circuit court to bardefendants' rejection of the award.²She noted, as did the arbitrators, that defendants did not appear at the arbitration proceeding, despite the filing of a Rule 237 notice to appear.She additionally noted that defendants did not seek a waiver of their appearance.Defendants responded to the motion, arguing that under Rule 91, debarring them from rejecting the award was unwarranted because their counsel appeared and participated in the arbitration hearing.Allen further asserted: that she had appeared for her deposition, that Williams had not been prejudiced by her failure to appear; that Stamps, her husband, was merely the owner of the car and was not a witness to the accident; that defendants had not received notice of the date of the arbitration hearing because their attorney sent notice to the incorrect address; and that she had a meritorious defense.Gregory Morse, defendants' counsel, attached his affidavit to the response, averring that he was present and participated in the arbitration.Allen also attached her affidavit, reiterating that she did not receive notice of the date of the hearing and stating that she would be willing to attend another hearing.

On November 22, 1993, the trial court granted Williams' motion to debar rejection of the award and entered judgment on the arbitration award.³Defendants filed a motion to reconsider, essentially reiterating the arguments made in their response and attaching the same affidavits from Allen and Morse.Williams and Dorsey opposed the motion.On February 4, 1994, the court denied the motion to reconsider.Defendants now appeal.

Before reaching the merits of this appeal, we observe that the record consists only of the common law record; there is no certified transcript of proceedings or agreed statement of facts.While we may consider the issues raised by defendants by reference to the common law record (seeFiala v. Schulenberg(1993), 256 Ill.App.3d 922, 924, 195 Ill.Dec. 196, 198, 628 N.E.2d 660, 662), any doubts raised by insufficiencies in the record must be resolved against defendants who had the obligation to present this court with a sufficiently complete record of the trial court proceedings to support their claims of error (Foutch v. O'Bryant(1984), 99 Ill.2d 389, 391-92, 76 Ill.Dec. 823, 824, 459 N.E.2d 958, 959).

Defendants first contend that they were not properly served with a Rule 237(b) notice to appear at the arbitration proceeding.They did not make this argument at trial; they have therefore waived its consideration on appeal.Schechter v. Blank(1993), 254 Ill.App.3d 560, 563, 193 Ill.Dec. 947, 950, 627 N.E.2d 106, 109, appeal denied(1993), 153 Ill.2d 569, 191 Ill.Dec. 629, 624 N.E.2d 817.

Even absent waiver, defendants would not prevail on this claim.On June 29, 1993, Rannie Dorsey filed a document titled "RULE 237 SUPPLEMENTAL NOTICE TO PRODUCE AT TRIAL AND MANDATORY ARBITRATION HEARING" which stated:

"Pursuant to Supreme CourtRules 213(e),237andSection 60 of the Civil Practice Act, you are notified to produce at the commence [sic ] of trial of this case:

1.The Plaintiff and Co-Defendants, Delphine Williams, Andrea Allen A/K/A Andrea Allen-Stamps and Larry Stamps."(Emphasis added.)

The attorney certification accompanying the notice refers to trial and mandatory arbitration.Defendants rely on Pros Corporate Management Services, Inc. v. Ashley S. Rose, Ltd.(1992), 228 Ill.App.3d 573, 170 Ill.Dec. 173, 592 N.E.2d 609, to support their contention that the above document failed to provide them with notice to appear at the arbitration hearing.In Pros, the defendant filed a Rule 237 notice to appear, entitled "NOTICE TO PRODUCE AT TRIAL."The body of the notice stated that the plaintiff was required to appear at the trial or arbitration hearing.We found that the notice did not require the plaintiff to appear at trial because it instructed the plaintiff to appear at the arbitration center on the date of the arbitration hearing and, at the time the notice was filed, no trial had been scheduled.Consequently, it would have been illogical to conclude that the notice referred to the trial.Pros, 228 Ill.App.3d at 581, 170 Ill.Dec. at 178, 592 N.E.2d at 614.

Defendants argue that under Pros, a reasonable interpretation of the motion to produce in the instant case is that it applied to trial, since arbitration was mentioned only in the heading of the document.Defendants overlook the basis of our analysis in Pros.We did not limit our inquiry to the four corners of the motion; rather we examined the circumstances of the case.By utilizing similar reasoning in the instant case, we conclude that Pros supports plaintiffs' position that adequate Rule 237 notice was given.As in Pros, this case had been transferred to mandatory arbitration and no trial was scheduled.Therefore, the motion could not have been intended to compel defendants' appearance at trial.Consequently, we conclude that adequate notice was given under Rule 237(b).

In a related argument, defendants contend that they never received notice of the date of the arbitration hearing from their attorney.They lived at 1100N. LaSalle, but their attorney sent notice to 11 N. Division.We find this argument to be utterly without merit, for it is well-settled that "notice to an attorney is notice to the client and knowledge of an attorney is knowledge of, or imputed to the client, notwithstanding whether the attorney has actually communicated such knowledge to the client."(Eckel v. Bynum(1992), 240 Ill.App.3d 867, 875, 181 Ill.Dec. 94, 101, 608 N.E.2d 167, 174;see alsoBurton v. Estrada(1986), 149 Ill.App.3d 965, 972, 103 Ill.Dec. 233, 239, 501 N.E.2d 254, 260;Hahn v. Wiggins(1959), 23 Ill.App.2d 391, 397, 163 N.E.2d 562, 565.)Defendants' attorney obviously had knowledge of the date of arbitration and that knowledge is imputed to defendants, regardless of whether he sent notice to the wrong address.(SeeHahn, 23 Ill.App.2d at 397, 163 N.E.2d at 565.)Moreover, the fact that a litigant has not been informed of the date of a hearing does not constitute an excuse for the litigant's failure to appear at the hearing.(SeeTiller v. Semonis(1994), 263 Ill.App.3d 653, 657, 200 Ill.Dec. 233, 235, 635 N.E.2d 572, 574;see alsoClark A. Nichols, Illinois Civil Practice§ 4149, at 238(1980& Supp.1992).)Furthermore, as plaintiffs point out, Allen appeared for her deposition...