First Division
February 27, 2006
No. 1-05-1035
LETICIA LOPEZ, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. ) 03 MI 304554
)
RYAN MILLER, )
) Honorable
Defendant-Appellant. ) Michael T. Healy,
) Judge Presiding.
JUSTICE McBRIDE delivered the opinion of the court:
Defendant, Ryan Miller, appeals from a trial court order barring him from rejecting an
arbitration award and entering judgment in favor of plaintiff, Leticia Lopez, in the amount of
$15,000. On appeal, defendant argues that the trial court erred in (1) barring rejection of the
arbitration award where the arbitration panel found that all parties participated in good faith and
no transcript of the arbitration proceeding is available; (2) barring rejection of the arbitration
award for a prearbitration discovery violation; and (3) barring rejection of the arbitration award
when both defendant and defense counsel were present at the arbitration hearing.
On October 23, 2003, plaintiff filed a complaint against defendant, claiming that
defendant negligently made a left turn that resulted in a November 2002 accident between the
parties= cars. Plaintiff alleged that she suffered severe injuries as a result of the accident. On
March 30, 2004, plaintiff submitted to defendant discovery requests, including interrogatories,
requests for production, interrogatories pursuant to Supreme Court Rule 213(f) (177 Ill. 2d R.
213(f)), a Supreme Court Rule 237 notice to produce (166 Ill. 2d R. 237), and a notice of
deposition which scheduled defendant=s deposition for April 29, 2004, at 1 p.m. The Rule 237
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notice included a request that defendant be present at trial and mandatory arbitration as an
adverse witness.
On May 11, 2004, the trial court heard argument on plaintiff's motion to compel
defendant's answers to her discovery requests. Although neither plaintiff's motion to compel nor
the trial court's order on the motion to compel is part of the record on appeal, it is not disputed
that the motion was filed or that an order was entered against defendant. Furthermore, a certified
bystander's report pursuant to Supreme Court Rule 323(c) (166 Ill. 2d R. 323(c)) was entered by
the trial court on May 17, 2005. The bystander's report indicates that on May 11, 2004, the trial
court granted plaintiff's motion to compel and ordered defendant to answer written discovery by
June 8, 2004, and for defendant to appear for his deposition by June 22, 2004. The bystander=s
report also indicates that defendant was barred from testifying or presenting evidence at the
arbitration hearing by the court order of May 11, 2004. The bystander=s report further indicates
that although the parties disputed the reason why defendant was not present on June 8, 2004,
defendant Anevertheless failed to appear for his deposition on June 25, 2004, and that the
Defendant failed to take any action to comply with or to vacate the Court=s order of May 11,
2004, at any time prior to the arbitration hearing on October 7, 2004.@ Defendant contends that
he answered all written discovery by the June 8, 2004, deadline. The record only contains
defendant's answers to plaintiff's interrogatories and answers to plaintiff's Rule 213(f)
interrogatories, which were filed on June 3, 2004. Plaintiff does not contest that defendant
answered written discovery, but contends that defendant never complied at any time with the
court=s order to be deposed.
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On May 12, 2004, the parties agreed to schedule both plaintiff's and defendant's
depositions for June 8, 2004, at 2 p.m. at the office of defense counsel. Defendant's deposition
was not taken on June 8, 2004, but was rescheduled for June 25, 2004. There is a dispute in the
record as to the facts surrounding the cancellation of defendant's June 8 deposition. Defendant in
his supplement to his motion to reconsider, stated that plaintiff's counsel cancelled the
deposition, and he attached two affidavits in support of this claim. One affidavit is from the
deposition secretary at defense counsel's firm who stated that, prior to June 8, 2004, the attorney
for plaintiff contacted her and cancelled the deposition. The second was from defendant, who
stated that he was prepared to attend the June 8, 2004, deposition but was informed that the
deposition had been cancelled by plaintiff's attorney. Plaintiff's attorney, on the other hand, said
that during the March 16, 2005, hearing on defendant=s motion to reconsider, he did not cancel
the defendant's deposition. It is undisputed that defendant's deposition was rescheduled for June
25, 2004, and defendant did not appear for his June 25, 2004, deposition because he stated that
he had just begun an internship at Hinsdale Hospital in the operating rooms. Defendant's
deposition was never rescheduled.
On October 7, 2004, both parties and their attorneys appeared for mandatory arbitration.
However, defendant was barred from testifying or presenting evidence at the arbitration hearing
as a result the trial court's order on May 11, 2004, on plaintiff's motion to compel. Defense
counsel made opening and closing statements and cross-examined plaintiff. The arbitrators ruled
in favor of plaintiff and awarded her $15,000. The arbitrators found that all parties participated
in good faith.
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On November 5, 2004, defendant filed his notice of rejection of the arbitration award and
requested a trial. On November 29, 2004, plaintiff filed a motion to strike and bar rejection of
the arbitration award, in which she argued that due to defendant's failure to comply with the trial
court's order of May 11, 2004, defendant failed to meaningfully participate in the arbitration
pursuant to Supreme Court Rule 91(b), thus warranting debarment. Defendant filed a response
to plaintiff's motion to bar and argued that plaintiff failed to state how plaintiff was prejudiced by
defendant's failure to testify at the arbitration because the arbitrators found in favor of plaintiff
and awarded her $15,000. Defendant pointed out that the arbitrators specifically found that all
parties participated in good faith. Additionally, defendant asserted that because damages were
arbitrated and lesser sanctions such as barring testimony or a directed finding of negligence
would be entered, debarring the rejection of the arbitration award was an inappropriate sanction.
Plaintiff replied that defendant did not provide any reason why he: (1) did not comply with the
trial court's order of May 11, 2004, and appear for his June 25, 2004, deposition; (2) did not
attempt to remove the sanctions in the four months leading up to the arbitration; (3) did not ask
for additional time to comply with the sanctions in the four months leading up to the arbitration;
and (4) did not move to continue the arbitration so that additional time could be allowed for
defendant to comply with the trial court's order of May 11, 2004.
On January 10, 2005, the trial court, after reviewing the briefs of both parties and hearing
argument from counsel, found that Athe Defendant failed to participate in good faith at the
arbitration hearing pursuant to Supreme Court Rule 91(b) [(145 Ill. 2d R. 91(b))] as the
Defendant was barred from testifying and presenting any evidence at the arbitration hearing
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pursuant to [the trial court's] order of May 11, 2004.@
On February 4, 2005, defendant filed a motion to reconsider and stated that the court
misapplied the law as it pertained to Rule 91(b) sanctions, which the trial court denied, stating
that regardless of the reasons for the cancellation of defendant's June 8, 2004, deposition, the
defendant failed to appear for his deposition on June 25, 2004. The trial court also noted that
defendant failed to take any action to comply with or vacate the trial court's order of May 11,
2004, at any time prior to the arbitration hearing on October 7, 2004.
We will not disturb a trial court's decision to bar a party from rejecting an arbitration
award absent an abuse of discretion. Glover v. Barbosa, 344 Ill. App. 3d 58, 61 (2003);
Anderson v. Pineda, 354 Ill. App. 3d 85, 87 (2004). A trial court abuses its discretion when its
decision is arbitrary, fanciful or unreasonable. Glover, 344 Ill. App. 3d at 61.
The first issue is whether the trial court abused its discretion in imposing a debarment
sanction pursuant to Supreme Court Rule 91(b). Rule 91(b) requires that parties to an arbitration
hearing participate in good faith and in a meaningful manner and allows a trial court to impose
sanctions, including barring the offending party from rejecting the award, if a party fails to do so.
145 Ill. 2d R. 91(b). Defendant argues that the trial court improperly found that he participated
at arbitration in bad faith when he appeared in person and with counsel, he fully participated
through his attorney, and the arbitrators made a finding that all parties participated in good faith.
We find that the facts in the present case are analogous to those in Glover. In Glover, the
defendant failed to comply with discovery and was barred from presenting evidence and
testimony at trial or arbitration. Six months later, at arbitration, the defendant=s attorney
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presented opening and closing statements and cross-examined the plaintiff. Glover, 344 Ill. App.
3d at 60. The reviewing court found that the defendant Amade no attempt in those six months to
comply with discovery or modify or vacate the April 18 order to enable her to participate fully at
arbitration or trial.@ Glover, 344 Ill. App. 3d at 62. Rather, the defendant appeared at the
arbitration hearing, engaged in minimal participation, rejected an unfavorable award, and then
argued that her rejection cannot be barred based on a lack of good faith. Glover, 344 Ill. App. 3d
at 62.
The Glover court found the defendant=s argument to be Aan unpersuasive attempt to
minimize the negative inferences raised by her prearbitration conduct.@ Glover, 344 Ill. App. 3d
at 61. Relying on Eichler v. Record Copy Services, 318 Ill. App. 3d 790 (2000), the court in
Glover concluded the Adefendant=s continued failure to comply with discovery here demonstrated
an unwillingness to participate in good faith@ (Glover, 344 Ill. App. 3d at 62), and that the
defendant was in a Apredicament *** of her own making@ (Glover, 344 Ill. App. 3d at 61). The
court further noted that the defendant=s Aability to ensure good-faith compliance at the hearing
was within her control at all times@ because she failed to take any action in the six months
between the trial court=s imposition of sanctions and the arbitration hearing. Glover, 344 Ill.
App. 3d at 63.
Defendant relies on Amro v. Bellamy, 337 Ill. App. 3d 369 (2003), to support his
argument that the debarment sanction should be reversed. In Amro, the defendant failed to
comply with discovery deadlines and the trial court barred him from testifying at arbitration.
Amro, 337 Ill. App. 3d at 370. At the mandatory arbitration hearing, the defendant made
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opening and closing statements and cross-examined plaintiff, but did not present any evidence or
testimony. The trial court ordered that the defendant was debarred from rejecting the arbitration
award A >because of sanctions for failure to comply with discovery.= @ Amro, 337 Ill. App. 3d at
371.
On appeal, the Amro court held that the trial court had abused its discretion in barring
rejection. The court referred to the facts that the arbitration panel did not find and found the
record did not show that the defendant had participated in the hearing in bad faith. Amro, 337
Ill. App. 3d at 372. Further, the court held that the trial court erred in imposing sanctions
because the language of the trial court's debarment order indicated that A[c]learly the [trial] court
debarred defendant from rejecting the arbitration award on the basis of his conduct before the
hearing, which it cannot do.@ (Emphasis in original.) Amro, 337 Ill. App. 3d at 372. We point
out that Amro failed to consider the decision in Eichler, which held that a party=s failure to
comply with, vacate, or modify an order barring testimony at arbitration in the three-month time
period between the sanction order and arbitration indicated that the party never intended to
participate at the arbitration hearing in good faith. Eichler, 318 Ill. App. 3d at 792.
The contrary decisions in Glover and Amro were weighed by this court in Anderson.
Anderson presented the same fact situation where the defendants failed to comply with discovery
and as a result were barred from testifying and presenting evidence at arbitration. Anderson, 354
Ill. App. 3d at 86. The defendants sought to reject an unfavorable arbitration award, but the trial
court debarred them from rejecting the arbitration award because they failed to participate in a
good-faith manner and failed to explain their failure. Anderson, 354 Ill. App. 3d at 87.
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After reviewing the decisions in Glover and Amro, the Anderson court concluded that the
reasoning of Glover was more persuasive. Anderson, 354 Ill. App. 3d at 89. AIn determining
whether Rule 91(b) sanctions are appropriate, failing to consider violations that occurred outside
of, but directly impacted, the hearing >undermine[s] the spirit and purpose of Rule 91(b) and the
mandatory arbitration system as a whole.= Glover, 344 Ill. App. 3d at 62. We must be conscious
of the fact that a litigant who fails to modify, vacate, or comply with sanctions imposed due to a
discovery violation that occurs outside of the arbitration hearing may be incapable of
participating in the arbitration in a meaningful manner.@ Anderson, 354 Ill. App. 3d at 89.
We agree with the decisions in Glover and Anderson. Defendant=s failure to rectify his
deficient discovery participation during the four months between the trial court=s sanction order
and the arbitration hearing resulted in his debarment of rejecting the arbitration award.
Defendant offers no explanation why he failed to reschedule the June 25, 2004, deposition but
rather focuses on the circumstances of the cancelled deposition from June 8, 2004. This
argument is merely an attempt to shift the court=s attention away from his failure to appear at the
June 25, 2004, deposition. Here, as in Glover and Anderson, defendant created his own
problems by failing to comply with discovery and then further added to those problems by
failing to take any action to correct the sanctions imposed against him.
Further, defendant=s attempts to distinguish Glover and Anderson are disingenuous.
Defendant asserts that those cases do not control because Athe arbitrators did not find that the
defendant participated in the arbitration in good faith and in a meaningful manner,@ whereas the
arbitrators made an express written finding that all parties participated in good faith. While
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Glover and Anderson do not state that the arbitrators made a finding of good faith, both cases
noted that the arbitrators did not make a finding of bad faith. See Glover, 344 Ill. App. 3d at 60;
Anderson, 354 Ill. App. 3d at 86. Additionally, Glover pointed out that A[a] bad-faith finding by
an arbitration panel is not a prerequisite to entry of a debarment order by the trial court,@ and that
an arbitrator=s finding is only prima facie evidence and not an Airrebuttable presumption.@
Glover, 344 Ill. App. 3d at 63. Defendant also attempted to distinguish Glover and Anderson by
saying that Aunlike in the foregoing cases [which included Glover and Anderson], the sanctioned
party appeared in person and by counsel at the arbitration.@ Nothing in Glover or Anderson says
that the defendants failed to appear at arbitration; rather, both cases state that the defendants=
attorneys presented opening and closing statements and cross-examined the plaintiffs, just as
defendant=s counsel did in the present case. See Glover, 344 Ill. App. 3d at 60; Anderson, 354
Ill. App. 3d at 86.
For the foregoing reasons, we affirm the decision of the circuit court of Cook County.
Affirmed.
CAHILL, P.J. and BURKE, J., concur.
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