Sabo v. Dennis

Rule 23 order filed NO. 5-09-0568
January 28, 2011;
Motion to publish granted IN THE
March 8, 2011.
APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

SHERRILL SABO, ) Appeal from the
) Circuit Court of
Plaintiff, ) Madison County.
)
v. )
)
MICHAEL DENNIS and DENNIS TECHNOLOGY, )
LLC, )
Defendants. )
)
----------------------------------------------------------------- ) No. 07-L-311
)
DENNIS TECHNOLOGY, LLC, )
)
Third-Party Plaintiff-Appellant, )
)
v. )
)
SPRINT NEXTEL CORPORATION, NEXTEL )
RETAIL STORES, LLC, NEXTEL )
OPERATIONS, INC., SPRINT SPECTRUM, )
L.P., SPRINT SOLUTIONS, INC., RALPH )
TRASK, and DM COMMUNICATION )
SERVICES, INC., ) Honorable
) David A. Hylla,
Third-Party Defendants-Appellees. ) Judge, presiding.

JUSTICE STEWART delivered the judgment of the court, with opinion.
Presiding Justice Chapman and Justice Wexstten concurred in the judgment and
opinion.

OPINION

This case is on appeal from the order of the Madison County circuit court granting a

motion to compel arbitration and staying the underlying trial court proceedings. On April

3, 2007, the plaintiff in the underlying action, Sherrill Sabo, filed a complaint against

Michael Dennis (Dennis) and Dennis Technology, LLC (Dennis Technology), alleging they

1
owed her in excess of $50,000 as a result of her employment with Dennis Technology.

Hereinafter, we will refer to both defendants as Dennis Technology, except when we refer

specifically and solely to Dennis.

Dennis Technology filed an answer, affirmative defenses, and a third-party complaint

against Sprint Nextel Corp. (Sprint Nextel) and Nextel Retail Stores, LLC (Nextel Retail).

Later, Dennis Technology filed an amended third-party complaint adding the remaining

third-party defendants, Nextel Operations, Inc. (Nextel Operations), Sprint Spectrum, L.P.

(Sprint Spectrum), Sprint Solutions, Inc. (Sprint Solutions), Ralph Trask (Trask), and DM

Communication Services, Inc. (DM Communication) (collectively, the third-party

defendants) (additionally, we collectively refer to all the third-party defendants except Trask

and DM Communication as Sprint Nextel).

In the amended third-party complaint, Dennis Technology purported to allege causes

of action for breach of contract, intentional interference with contractual relations,

defamation, and false representation and requested both monetary damages and injunctive

relief. Essentially, Dennis Technology alleged that the third-party defendants were

responsible for its failure to pay Sabo.

On July 5, 2007, Sprint Nextel and Nextel Retail filed a motion to compel arbitration

and stay the trial court proceedings, alleging that they had entered into certain agreements

with Dennis Technology whereby Dennis Technology had waived its right to litigate disputes

concerning those agreements and had agreed instead to submit those disputes to arbitration.

Later, the remaining third-party defendants filed similar motions to compel arbitration and

stay the trial court proceedings. Dennis Technology filed a response claiming that neither

Sprint Nextel nor Nextel Retail had signed an agreement giving them the right to compel

arbitration. Dennis Technology also alleged that it had a "variety of challenges to the

arbitration provision, including unconscionability, violation of due process, [and] lack of

2
mutuality." After an evidentiary hearin g, the trial court granted the motion to compel

arbitration with regard to Sprint Nextel and stayed the trial court proceedings with regard to

all the third-party defendants. Dennis Technology filed this appeal pursuant to Illinois

Supreme Court Rule 307(a)(1) (eff. Jan. 1, 2003).

On appeal, Dennis Technology makes four main arguments: (1) that we should reverse

the trial court's grant of the motion to compel arbitration with regard to all the third-party

defendants except Sprint Solutions because Sprint Solutions is the only third-party defendant

who signed the 2006 "Authorized Representative Agreement" (2006 AR Agreement), (2) that

we should reverse the trial court's stay with regard to the remaining third-party defendants,

(3) that the 2006 AR Agreement is unconscionable, and (4) that Sprint Nextel violated the

requirement that the parties negotiate and mediate before arbitration and thereby

constructively waived its right to arbitrate. We affirm.

BACKGROUND

At the evidentiary hearing on the motion to compel arbitration, the parties presented

the following relevant evidence. On March 18, 2002, Dennis Technology entered into an

"Authorized Representative Agreement" (2002 AR Agreement) with Nextel West Corp.

(Nextel). In the 2002 AR Agreement, Nextel authorized Dennis Technology to sell its

wireless telecommunication equipment and systems in southeastern Missouri and

southwestern Illinois for an initial period of two years, with the possibility of three one-year

extensions. Under the 2002 AR Agreement, either party was allowed to terminate the

agreement without cause upon 30 days' written notice to the other party. In addition, both

parties agreed to the following:

"Any controversy, dispute or claim arising out of the interpretation,

performance or breach of this Agreement *** shall be resolved by binding arbitration,

at the request of either party, in accordance with the rules of the American Arbitration

3
 Association. The arbitration shall be conducted by a panel of three arbitrators ***.

The arbitration shall be held in New York City or such other location as shall be

mutually agreeable ***."

The parties agreed that Dennis Technology would receive compensation according to

specified plans, which included the eligibility to receive reimbursements on a sliding scale

for customer accounts that remained active for up to 36 months, which they referred to as

"Continuing Service Awards" (CSAs). Under the 2002 AR Agreement, Nextel reserved the

right to "reduce or change" Dennis Technology's compensation plan, including its eligibility

to receive CSAs. Additionally, the parties agreed that "[a]ll questions with respect to the

construction" of the agreement "and the rights and liabilities of the parties" would be

governed by Virginia law.

In 2003, Dennis Technology and Nextel entered into another AR Agreement (2003

AR Agreement), the relevant provisions of which were the same as the 2002 AR Agreement.

In August 2005, the merger that created Sprint Nextel was consummated. At that

time, Nextel dealers, such as Dennis Technology, were generally not authorized to sell Sprint

products and services, and Sprint dealers were generally not authorized to sell Nextel

products and services. Blair Frock testified that he was employed by Sprint at the time of

the merger with Nextel. After the merger, he was responsible for the accounts of Sprint

Nextel dealers in several midwestern states, including Dennis Technology's account. In

September 2005, Dennis Technology entered into an agreement with Sprint Nextel (the

Addendum). Frock testified that, after the merger, there were more than 3,000 Nextel and

Sprint dealers across the United States. Sprint Nextel required each of those dealers to

execute virtually the same addendum with it in order to authorize the Nextel dealers to sell

Sprint products and services and Sprint dealers to sell Nextel products and services.

Frock testified that, after the dealers signed the addendums and were allowed to begin

4
selling both Sprint and Nextel products and services, Sprint Nextel still had tw o

compensation plans, one for the former Sprint dealers and another for the former Nextel

dealers, which "made it very operationally inefficient for the dealers as well as for *** Sprint

Nextel." Frock testified that, in order to address those issues, Sprint Nextel sent all the

dealers, including Dennis Technology, an AR Agreement with uniform terms and conditions.

Under the May 1, 2006, AR Agreement between Dennis Technology and Sprint Nextel (2006

AR Agreement), Dennis Technology chose to become an exclusive dealer for Sprint Nextel.

Prior to signing the 2006 AR Agreement, Dennis Technology and the other Sprint Nextel

dealers were allowed to choose between three types of compensation plans, with the

exclusive plan providing the highest level of compensation. Frock testified that more than

30 days before the dealers were requested to sign the new AR Agreements, Sprint Nextel

sent each of them a notice that it was planning to change the terms of their compensation.

Frock testified that he personally met with each of the approximately 200 dealers in

his region to explain the terms of the AR Agreement Sprint Nextel was requesting them to

sign. Sprint Nextel wanted the dealers to be able to ask questions and get information about

the terms of the AR Agreement, but it was not willing to change any of the terms at the

request of any of the dealers. Frock testified that although Dennis and his attorney proposed

several changes to the 2006 AR Agreement, Sprint Nextel was "not able to accommodate"

those requests because it was attempting to get all of its nationwide dealers entered into

contracts with the same terms and conditions. He testified that allowing Dennis Technology

to have an individualized contract would have undermined the company's goal of operational

efficiency. He stated as follows:

"If Sprint Nextel had 3,000 different contracts, trying to operationally manage[,] that

would have been a nightmare. So that's why the decision was ultimately made from

our legal department and our operation department that everybody has to essentially

5
 be on the same terms and conditions."

Frock testified that if Dennis Technology had not signed the 2006 AR Agreement,

Sprint Nextel would have terminated its dealership upon 30 days' written notice and that the

same consequence applied to every Sprint Nextel dealer to whom they sent the new AR

Agreement. He testified that if a dealer had not signed the new AR Agreement, Sprint Nextel

would have paid the accrued CSAs, either as a continuing income stream or in a lump sum

according to the net present value of that income.

The parties stipulated that Patricia Dennis, whom the record reflects is the mother of

Michael Dennis, is a practicing attorney, had practiced law for 10 years, had represented

Dennis Technology since its inception in 2002, and represented it in connection with the

negotiations prior to Dennis signing the 2006 AR Agreement.

Dennis testified that he is the president of Dennis Technology, a company he started

in 2002 in order to sell wireless products for Nextel. Dennis testified that, at the time of

Nextel's merger with Sprint, Dennis Technology was one of the top 10 Nextel dealers in the

St. Louis area and that, in the latter half of 2005, when the Addendum was presented to him,

he agreed to start selling Sprint equipment in addition to Nextel equipment. Before the

merger between Sprint and Nextel, there had been only one other store selling Nextel phones

and service near Dennis Technology. After the merger, the area was "heavily saturated" with

a variety of cell phone providers with retail outlets near Dennis Technology. He testified

that, in May 2006, it was not possible for Dennis Technology to become a cell phone dealer

for a provider other than Sprint or Nextel because the compensation plans of the other

providers would not have been nearly as profitable, especially given the location and number

of exclusive providers nearby.

Dennis explained that he was not happy with the compensation plans offered as a part

of the 2006 AR Agreement. After having his attorney review the proposed contract, he

6
"decided [it] was not a satisfactory contract," he wanted "a little bit more clarity," and he did

not want arbitration. He testified that he was very concerned with a number of issues and

tried to "illuminate those to Sprint." He testified that he had several conversations with

Sprint Nextel representatives about his concerns, but he could not remember the name of

anyone he spoke with, the date of any particular conversation, or any other details about the

conversations. Generally, Dennis testified that someone had told him that if he did not sign

the 2006 AR Agreement, his dealership would be terminated without giving Dennis

Technology 30 days' notice and that this person was "very clear that everything was going

to disappear." He also testified that an unidentified person had told him that Sprint Nextel

would not pay Dennis Technology its accrued CSAs if it was no longer a dealer. He

calculated the approximate value of his CSAs when he signed the 2006 AR Agreement in

May 2006 at $540,000, or $15,000 per month for 36 months. Frock testified that in the event

Dennis Technology did not sign the 2006 AR Agreement, Sprint Nextel would have paid

Dennis Technology the net present value of the CSAs, an amount between $100,000 and

$120,000.

Dennis testified that, prior to signing the 2006 AR Agreement, he initially requested

Sprint Nextel to remove the arbitration provision altogether, but its representatives declined

to make any changes and told him to "take it or leave it." He testified that if required to

arbitrate this dispute in New York City, he would not be able to afford the cost. He assumed

that the cost of a flight to New York City would be $1,200 per seat. He did not believe there

were any witnesses located in New York, and he stated that he would have to call about 30

to 40 potential witnesses, 95% of whom he estimated lived within a 50-mile radius of

Madison County and none of whom were located in New York State.

He admitted that he signed the 2002 and 2003 AR Agreements, both of which also

contained provisions requiring arbitration in New York City. He acknowledged that he did

7
not sign those agreements under duress and did not contend that they were unconscionable

in any way. He agreed that he had owned at least five different businesses over the previous

17 years and that, at the time of the hearing, Dennis Technology was still in business

providing consulting services but was no longer a Sprint Nextel dealer. In 2006, Dennis

Technology was earning approximately $75,000 per month. He consulted with his attorney

multiple times and had numerous conversations with Sprint representatives before signing

the 2006 AR Agreement.

On May 14, 2009, the trial court entered an order granting the motion to compel

arbitration with regard to all the third-party defendants except Trask and DM

Communication and staying the trial court proceedings with regard to all the third-party

defendants. The court found that there was a valid and enforceable arbitration provision in

the 2006 AR Agreement and that all of Dennis Technology's claims against the third-party

defendants fell within the scope of that provision. The court determined that Dennis

Technology failed to establish its defenses of duress and unconscionability as a matter of fact

and law. The court noted that the 2006 AR Agreement included a Virginia choice-of-law

provision and that, under either Illinois law or Virginia law, it would grant the motion to

compel arbitration.

The court found that the claim of duress applied to the agreement as a whole and that,

as a result, the arbitrators should decide that claim. The court noted, however, that if it were

to decide the issue of duress, it would not find that Dennis Technology signed the agreement

under duress because it had been operating under a "very similar agreement" since 2002 that

allowed Nextel to terminate its dealership without cause upon 30 days' notice. The court

found no foundation for Dennis's claim that Sprint Nextel had forced him to sign the

agreement after telling him that it would not honor the 30-day-notice provision and would

not pay accrued CSAs, because Dennis testified that he did not know who made the

8
statement, when it was made, whether it was made in person or over the telephone, or who

else was present when it was made. The court further found that Dennis Technology

"arguably" still had the right to "pursue an arbitration claim for breach of contract" if any

CSAs were not fully paid or if it incurred other damages as a result of the termination.

The court found that Dennis Technology had entered into the 2006 AR Agreement

"with full knowledge of the facts and its terms" and that it chose the "Exclusive Dealer plan,"

which required it to exclusively sell Sprint Nextel products and services in exchange for

greater compensation. The court noted that Dennis Technology had "continued to accept

compensation under the 2006 Agreement for many months" but that when Sprint Nextel

terminated the agreement in March 2007, it "obtained injunctive relief to prevent termination

of the agreement, thus affirming the validity of the 2006 [AR] Agreement."

The court further determined that Dennis Technology had failed to prove that the

2006 AR Agreement was unconscionable and that the issue of unconscionability was for the

arbitrators to decide. The court stated that if it were to decide the issue of unconscionability,

it would find that the 2006 AR Agreement "was a commercial contract entered into by both

parties exercising their own free will." The court did not find the selection of New York

City as the location of the arbitration unconscionable: "Dennis Technolog[y] did not present

sufficient evidence that the cost of arbitration in New York would be prohibitive such that

it would be deprived of the ability to fairly arbitrate; nor did [it] present any evidence that

litigating in Madison County would be less expensive than arbitrating in New York."

The court found that Sprint Nextel had not waived its right to arbitrate by filing the

motion to compel arbitration without first negotiating or mediating the dispute, because the

agreement included no provision requiring it "to negotiate or mediate after Dennis

Technolog[y] filed a lawsuit" against it. (Emphasis in original.) The court denied Dennis

Technology's motion to reconsider, and this appeal followed.

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 ANALYSIS

The parties disagree on the appropriate standard of review for this case. Dennis

Technology asserts that the appropriate standard is de novo because the trial court's

construction of an arbitration agreement states a question of law. That is correct to the extent

that our decision involves interpreting the parties' agreement. Peach v. CIM Insurance

Corp., 352 Ill. App. 3d 691, 694 (2004) (the review of a trial court's construction of an

arbitration agreement is a question of law). Sprint Nextel argues that we must apply the

abuse-of-discretion standard because the trial court conducted a full-day evidentiary hearing

and made several findings of fact in granting the motion to compel arbitration. This is an

interlocutory appeal pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Jan. 1, 2003),

under which the pivotal issue is whether there is a sufficient showing to sustain the trial

court's order, and the standard of review for the trial court's ultimate decision is whether it

abused its discretion in granting or denying the requested relief. Bishop v. We Care Hair

Development Corp., 316 Ill. App. 3d 1182, 1189 (2000). However, our review of the court's

interpretation of the parties' agreement is de novo. Peach, 352 Ill. App. 3d at 694.

The trial court's finding that there was a valid arbitration agreement covering the

dispute between Dennis Technology and Sprint Nextel involves interpreting the parties'

agreement, and the review is de novo. Congress enacted the Federal Arbitration Act (9

U.S.C. §1 et seq. (2006)) in order to overcome judicial resistance to arbitration. Buckeye

Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443 (2006). Section 2 of the Federal

Arbitration Act "embodies the national policy favoring arbitration and places arbitration

agreements on equal footing with all other contracts." Id. at 443; 9 U.S.C. §2 (2006).

Section 2 provides as follows:

"A written provision in any *** contract evidencing a transaction involving

commerce to settle by arbitration a controversy thereafter arising out of such contract

10
 or transaction, or the refusal to perform the whole or any part thereof, or an agreement

in writing to submit to arbitration an existing controversy arising out of such a

contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save

upon such grounds as exist at law or in equity for the revocation of any contract." 9

U.S.C. §2 (2006).

Challenges to the validity of an arbitration agreement are divided into two types.

Buckeye Check Cashing, Inc., 546 U.S. at 444. One type challenges the validity of the

agreement to arbitrate, and the other challenges the contract as a whole, on grounds that

directly affect the entire agreement or that render the entire contract invalid due to the

illegality of a provision of the contract. Id. "[R]egardless of whether the challenge is

brought in federal or state court, a challenge to the validity of the contract as a whole, and

not specifically to the arbitration clause, must go to the arbitrator." Id. at 449.

In this case, the parties agreed to binding arbitration of "[a]ny controversy, dispute or

claim arising out of the interpretation, performance or breach of this Agreement." Dennis

Technology's challenges to Sprint Nextel's motion to compel arbitration all went to the

contract as a whole rather than exclusively to the agreement to arbitrate. Therefore, the trial

court correctly decided that Dennis Technology's challenges to the contract must be

considered by the arbitrators. W e will briefly address the issues Dennis Technology raises

on appeal.

Dennis Technology first argues that Sprint Solutions is the only third-party defendant

that can compel arbitration because none of the others signed the 2006 AR Agreement. The

trial court ruled that there was a valid and enforceable agreement between Dennis

Technology and all the third-party defendants except Trask and DM Communication but that

Dennis Technology's third-party action against Trask and DM Communication should be

stayed pending the outcome of the arbitration. Dennis Technology concedes that there is a

11
valid arbitration agreement under which Sprint Solutions is entitled to compel arbitration and

stay the trial court proceedings. We determine this issue under Virginia law pursuant to the

parties' agreement. On appeal, Dennis Technology does not challenge this choice-of-law

provision.

"[U]nder Illinois's choice-of-law rules, an express choice-of-law provision will be

given effect if the provision does not contravene Illinois public policy and the state chosen

bears a reasonable relationship to the parties or the transaction." Hubbert v. Dell Corp., 359

Ill. App. 3d 976, 982 (2005). In our case, there is no public policy against the application

of Virginia law. The parties agreed in the trial court that the applicable Virginia and Illinois

laws were very similar. Additionally, there is a reasonable relationship between Sprint

Nextel and Virginia. In oral arguments before the trial court, Sprint Nextel alleged that its

headquarters at the time the parties entered into the 2006 AR Agreement was located in

Reston, Virginia, and Dennis Technology did not dispute that assertion.

Virginia law provides, "A written agreement to submit any existing controversy to

arbitration or a provision in a written contract to submit to arbitration any controversy

thereafter arising between the parties is valid, enforceable and irrevocable, except upon such

grounds as exist at law or in equity for the revocation of any contract." Va. Code Ann.

§8.01-581.01 (2008). Virginia law additionally provides as follows: "On application of a

party showing an agreement described in §8.01-581.01, and the opposing party's refusal to

arbitrate, the court shall order the parties to proceed with arbitration. However, if the

opposing party denies the existence of the agreement to arbitrate, the court shall proceed

summarily to the determination of the issue of the existence of an agreement and shall order

arbitration only if found for the moving party." Va. Code Ann. §8.01-581.02(A) (2008).

Under Virginia law, the trial court is authorized in the first instance to decide issues of

arbitrability, unless the parties have specifically agreed in their contract that the issue of

12
arbitrability is for the arbitrators. Waterfront Marine Construction, Inc. v. North End 49ers

Sandbridge Bulkhead Groups A, B & C, 251 Va. 417, 425, 468 S.E.2d 894, 898 (1996).

Generally, under V irginia law, the right to compel arbitration stems from the

underlying contract, and one who has not signed that contract may not compel arbitration.

Mission Residential, LLC v. Triple Net Properties, LLC, 275 Va. 157, 161, 654 S.E.2d 888,

890 (2008) (a party cannot be compelled to arbitrate unless he has agreed to arbitrate, and

the one seeking to compel arbitration has the burden of proving the existence of the

agreement). The 2006 AR Agreement is "between Sprint Solution, Inc., on behalf of itself

and its affiliates that provide products and services ('Sprint') and Dennis Technology, Inc."

There is no definition in the agreement for the term "affiliates" as used in the introductory

paragraph, but Dennis Technology argues that the term "affiliates" in the introductory

paragraph is synonymous with the term "Sprint Affiliates/Nextel Partners," which is defined

in the 2006 AR agreement as referring to "third parties not affiliated with Sprint that offer

Sprint Services outside of the geographic area covered by this Agreement." Dennis

Technology therefore contends that the term "affiliates" means "third parties not affiliated

with Sprint." Under the 2006 AR Agreement, Dennis Technology's argument fails.

We agree with the trial court's ruling on this issue:

"Certain findings of fact and law in support of this order were made. First, this

Court interprets the word 'affiliates' in the Agreement in question to include all the

Third-Party Defendants but for Ralph Trask and DM Communication[]. The Court

gives this word its plain and ordinary meaning because it does not appear that the

term is otherwise defined in the agreement. Also, Dennis Technolog[y] chose to sue

all five Sprint third-party defendants for breach of contract and related causes of

action. Therefore, if these defendants are not parties to the contract, there would be

no basis for a contract cause of action against them."

13
 The terms of the 2006 AR Agreement do not support Dennis Technology's

interpretation, under which we would be required to find that Sprint Solutions entered into

the agreement on behalf of its "affiliates," which are third parties not affiliated with Sprint

Nextel, an interpretation that makes no sense and is contrary to other terms of the agreement.

The record supports the court's finding that the term "affiliates" refers to all the third-party

defendants except Trask and DM Communication. Frock testified at length about the

functions of each third-party defendant and how each is related to Sprint Solutions and Sprint

Nextel. As a result, the trial court had evidence about the interrelationship between the third-

party defendants and their affiliations to Sprint Solutions, a sufficient basis for determining

that all the third-party defendants except Trask and DM Communication were covered by

the term "affiliates."

In a related argument, Dennis Technology asserts that the trial court abused its

discretion by staying the proceedings against Trask and DM Communication, who are not

parties to the 2006 AR Agreement and are not included in the order compelling arbitration.

Dennis Technology claims that it has no remedy against Trask and DM Communication now

that the trial court has stayed the proceedings against them. That argument misstates the

record. The trial court granted Trask's and DM Communication's motion to stay further trial

court proceedings pending a resolution by arbitration of the issues between the remaining

third-party defendants and Dennis Technology.

In their motion, Trask and DM Communication alleged as follows: "Dennis

Technology's claims against Trask and DM Communication are so closely related to the

claims between Sprint and Dennis Technology that arbitration of those claims [is] likely to

resolve the issues involving Trask and DM Communication. Indeed, the parties would

duplicate their efforts in having to litigate as well as arbitrate similar legal issues and facts

if the claims against Trask and DM Communication were not stayed pending conclusion of

14
the arbitration claims between Dennis Technology and Sprint." Therefore, in granting the

motion for a stay, the trial court did not leave Dennis Technology without a remedy but

merely ordered Dennis Technology to wait to pursue litigation against Trask and DM

Communication until a resolution of the arbitration between Dennis Technology and the

remaining third-party defendants. The court did not abuse its discretion in granting the

motion for a stay because it furthers the legitimate goal of judicial economy and the strong

policy favoring arbitration. Moreover, the issues involving the third-party defendants are

sufficiently interrelated that there may be no need for further litigation after the resolution

of the arbitration.

Dennis Technology's remaining arguments–that the contract is unconscionable and

that Sprint Nextel has waived its right to arbitration because it failed to comply with certain

conditions precedent–are not for the court to decide but must be decided by the arbitrators.

Under Virginia law, once it is established that the parties have entered into an agreement to

arbitrate, there is a presumption in favor of arbitration, and "the remaining question is

whether the scope of the agreement is broad enough to include the disputed issue." Mission

Residential, LLC, 275 Va. at 161, 654 S.E.2d at 890. In the case at bar, Dennis Technology

admits that it entered into an agreement to arbitrate, but it argues that the agreement should

not be enforced. The record supports the trial court's conclusion that Sprint Nextel is entitled

to submit all the issues raised in the third-party complaint to arbitration. The broad language

of the arbitration provision requires us to find that all the issues raised by Dennis Technology

in its third-party complaint are covered by the agreement to arbitrate, the merits of which

must be decided by the arbitrators. See East Coast Hockey League, Inc. v. Professional

Hockey Players Ass'n, 322 F.3d 311, 314-15 (4th Cir. 2003) (courts should rule in favor of

arbitration unless the terms of the contract positively show that the issue is not subject to

arbitration, and if the issue is arbitrable, the court is not to rule on the potential merits).

15
 Dennis Technology makes a final argument–that the trial court had no authority to

compel arbitration outside its jurisdiction. Sprint Nextel correctly points out that Dennis

Technology has forfeited this argument because it did not raise it in the trial court.

"Questions not raised in the trial court cannot be argued for the first time on appeal." Parks

v. Kownacki, 193 Ill. 2d 164, 180 (2000). Therefore, this issue is forfeited.

CONCLUSION

For all the reasons stated, we affirm the trial court's grant of the motion to compel

arbitration and for a stay of further proceedings against all the third-party defendants.

Affirmed.

16
 NO. 5-09-0568
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________________
SHERRILL SABO, ) Appeal from the
) Circuit Court of
Plaintiff, ) Madison County.
)
v. )
)
MICHAEL DENNIS and DENNIS TECHNOLOGY, )
LLC, )
Defendants. )
)
----------------------------------------------------------------- ) No. 07-L-311
)
DENNIS TECHNOLOGY, LLC, )
)
Third-Party Plaintiff-Appellant, )
)
v. )
)
SPRINT NEXTEL CORPORATION, NEXTEL )
RETAIL STORES, LLC, NEXTEL )
OPERATIONS, INC., SPRINT SPECTRUM, )
L.P., SPRINT SOLUTIONS, INC., RALPH )
TRASK, and DM COMMUNICATION )
SERVICES, INC., ) Honorable
) David A. Hylla,
Third-Party Defendants-Appellees. ) Judge, presiding.
___________________________________________________________________________________
Rule 23 Order Filed: January 28, 2011
Motion to Publish Granted: March 8, 2011
Opinion Filed: March 8, 2011
___________________________________________________________________________________
Justices: Honorable Bruce D. Stewart, J.
Honorable Melissa A. Chapman, P.J., and
Honorable James M. Wexstten, J.,
Concur
___________________________________________________________________________________
Attorneys Thomas G. M aag, Maag Law Firm, LLC, 22 W. Lorena Ave., W ood River, IL
for 62095; Patricia L. Dennis, Dennis Law Office, 115 South Main Street, Edwardsville,
Appellant IL 62025
___________________________________________________________________________________
Attorneys John L. Gilbert, Hinshaw & Culbertson, LLP, 156 North Main, Suite 206,
for Edwardsville, IL 62025; Frederic R. Klein, Deborah Rzasnicki Hogan, Goldberg,
Appellees Kohn, Ltd., 55 East Monroe Street, Suite 3300, Chicago, IL 60603
___________________________________________________________________________________