Woods v. Patterson Law Firm, P.C.

FIRST DIVISION
MARCH 31, 2008

No. 1-08-0066

JEFFREY WOODS, TANGO GRILL, INC., ) Appeal from the
THE HELIX GROUP, INC., and MICHAEL ) Circuit Court of
NELSON, ) Cook County.
Plaintiffs-Appellees, )
) No. 06 L 9470
v. ) (Consolidated with
) 06 L 1919 and 06 L 753.)
PATTERSON LAW FIRM, P.C., and )
THOMAS PATTERSON, ) Honorable
) Dennis J. Burke,
Defendants-Appellants. ) Judge Presiding.

JUSTICE ROBERT E. GORDON delivered the opinion of the court:

This is an interlocutory appeal pursuant to Illinois Supreme Court Rule 307(a)(1)

(188 Ill. 2d R. 307(a)(1)) from an order of the circuit court of Cook County denying

defendants’ joint motion to compel arbitration and to stay all judicial proceedings

pending the conclusion of that arbitration. We affirm.

BACKGROUND

Plaintiffs, Jeffrey Woods, Michael Nelson, Tango Grills, Inc., and The Helix

Group, Inc., filed a legal malpractice action in the circuit court of Cook County against

defendants, Patterson Law Firm, P.C., and Thomas Patterson. Plaintiffs alleged that

defendants breached their professional duties in defending or failing to defend plaintiffs
No. 1-08-0066

in four consolidated forcible entry and detainer actions, an action involving an alleged

breach of a promissory note, and an action alleging unpaid vacation pay. Defendants

represented plaintiffs pursuant to a written engagement agreement, which contained an

arbitration provision. The arbitration provision to the written engagement agreement

states, in pertinent part:

“Any controversy, dispute or claim arising out of or relating to our

fees, charges, performance of legal services, obligations reflected in this

letter, or other aspects of our representation shall be resolved through

binding arbitration in Chicago in accordance with the rules then in effect

of the American Arbitration Association, and judgment on the award

rendered may be entered in any court having jurisdiction thereof. You

acknowledge that by agreeing to arbitration, you are relinquishing your

right to bring an action in court and to a jury trial.”

A. Defendants’ Lawsuit to Recover Alleged Unpaid Legal Fees

Prior to the present action, defendants filed a complaint in the circuit court of

Cook County against plaintiff Woods. In that case, defendants alleged that plaintiff

Woods owed them over $47,000 in unpaid legal fees. On November 7, 2005, defendants

obtained a default judgment against plaintiff Woods. That same day, defendants filed a

motion requesting that $45,000 of plaintiff Woods’ monies, held in one of defendants’

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No. 1-08-0066

client trust accounts, be turned over to defendants in satisfaction of the default judgment.

The trial court transferred the motion for a turnover order to Judge Alexander P. White.1

On November 16, 2005, plaintiff Woods’ legal counsel filed an appearance on

behalf of Woods. That same day, Woods, through his attorney, filed a motion to vacate

the default judgment and to extend the time to file a responsive pleading. On November

28, 2005, the parties appeared before the trial court on plaintiff Woods’ motion to vacate

the default judgment. At that hearing, defendants requested a briefing schedule. The

trial court granted defendants’ request and ordered plaintiff Woods to answer defendants’

complaint on or before December 2, 2005.

That same day, defendants appeared before Judge White on their motion for a

turnover order for funds. Neither Plaintiff Woods, nor his attorney, appeared at the

1
Although the “fee” case was pending before Judge Dennis J. Burke, defendants’

motion for a turnover order was set to be heard by Judge White. At that time in the Law

Division of the circuit court of Cook County, Judge White was the supervising judge of

the Tax and Miscellaneous Remedies Section of the Law Division and heard

supplemental collection proceedings.

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No. 1-08-0066

motion for the turnover order.2 Defendants’ motion for a turnover order was granted and

transferred from defendants’ client trust account.

On December 2, 2005, plaintiff Woods filed an answer to defendants’ complaint,

which sought collection of the alleged unpaid legal fees. On January 11, 2006, plaintiff

Woods’ motion to vacate the default judgment was granted. After the default judgment

was vacated, plaintiff Woods served defendants with discovery requests. Defendants did

not respond to the discovery requests, but rather voluntarily dismissed the case pursuant

to section 2-1009 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-1009

(West 2004)).

B. Plaintiffs’ Legal Malpractice Action

On September 7, 2006, plaintiffs filed the instant legal malpractice action against

defendants. On October 13, 2006, defendants filed an appearance and jury demand. On

February 14, 2007, defendants filed a motion to dismiss plaintiffs’ complaint pursuant to

section 2-615 of the Code (735 ILCS 5/2-615 (West 2004)). Defendants’ motion to

dismiss asserted that plaintiffs’ complaint failed to comply with sections 2-603, 2-606,

2
In their brief to this court, plaintiffs contend that defendants did not provide

notice of the motion for a turnover order to plaintiff Woods. To the contrary, defendants

contend that they provided notice of the hearing to plaintiffs’ attorney at the November

28, 2005, hearing before Judge Burke. Although the parties discuss the notice of the

hearing (or lack thereof) at great length, we find that whether plaintiff Woods had notice

of the turnover hearing does not bear on the case at bar.

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No. 1-08-0066

and 2-613 of the Code, in that the allegations of plaintiffs’ complaint were not plain and

concise statements, were not properly separated by counts, did not attach the written

instrument on which the claims were based (engagement agreement), and did not attach

referenced exhibits. 735 ILCS 5/2-603, 2-206, 2-613 (West 2004). On March 8, 2007,

the trial court denied defendants’ motion to dismiss and ordered defendants to file a

responsive pleading to plaintiffs’ complaint. On April 25, 2007, defendants issued a

subpoena for documents to a third-party. On May 14, 2007, defendant served plaintiffs

with requests to produce documents and written interrogatories.

On May 14, 2007, defendants filed a second motion to dismiss plaintiffs’

complaint pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2004)). In the

second section 2-615 motion, defendants argued that plaintiffs’ complaint should be

dismissed because plaintiffs did not attach a copy of the parties’ engagement agreement

to their complaint. On May 21, 2007, the circuit court denied defendants’ second motion

to dismiss and ordered defendants to answer plaintiffs’ complaint.

On June 4, 2007, defendants filed a demand for a bill of particulars and an answer

to plaintiffs’ complaint. In their affirmative defense, defendants asserted that the parties’

disputes must be submitted to arbitration pursuant to the arbitration provision contained

in the engagement agreement. On June 19, 2007, plaintiffs served their answers to

defendants’ written discovery. On July 3, 2007, plaintiffs filed a motion to strike

defendants’ demand for a bill of particulars. On August 21, 2007, plaintiffs’ motion to

strike defendants’ demand for a bill of particulars was granted. On August 21, 2007,

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No. 1-08-0066

defendants served plaintiffs with a notice of deposition for plaintiff Woods for September

18, 2007. On August 29, 2007, plaintiffs served defendants with written interrogatories.

On September 25, 2007, defendants filed a motion to compel arbitration. On

December 12, 2007, after hearing argument from all parties, the trial court entered an

order denying defendants’ motion to compel arbitration. Incorporated into the trial

court’s order was the transcript from the December 12, 2007, hearing. The trial court

held that defendants’ complaint seeking alleged unpaid legal fees did not amount to

defendants’ waiver of their right to compel arbitration because the arbitration agreement

between the parties stated that arbitration would be conducted in accordance with the

rules of the American Arbitration Association in effect at the time of arbitration. Rule

48(a) of the rules of the American Arbitration Association in effect at the time of the case

at bar stated: “No judicial proceeding by a party relating to the subject matter of the

arbitration shall be deemed a waiver of the party’s right to arbitrate.” Am. Arb. Ass’n

Conn. R. 48(a) (2007). However, the trial court did find that defendants waived their

right to compel arbitration because defendants had filed two motions to dismiss and a

demand for a bill of particulars, and defendants had actively and voluntarily participated

in discovery by issuing interrogatories to plaintiffs, and by issuing a subpoena for

documents on a third-party in the case at bar. Defendants appeal.

ANALYSIS

As noted, this appeal was taken from the trial court’s denial of defendants’

motion to compel arbitration. Illinois Supreme Court Rule 307(a)(1) (188 Ill. 2d R.

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307(a)(1)) provides that a party can appeal an interlocutory order granting, modifying,

refusing, dissolving, or refusing to dissolve or modify an injunction. Bishop v. We Care

Hair Development Corp., 316 Ill. App. 3d 1182, 1189 (2000). “A motion to compel

arbitration is analogous to a motion for injunctive relief.” Bishop, 316 Ill. App. 3d at

1189, citing Amalgamated Transit Union, Local 900 v. Suburban Bus Division of the

Regional Transportation Authority, 262 Ill. App. 3d 334 (1994). Where, as here, an

interlocutory appeal is brought pursuant to Illinois Supreme Court Rule 307(a)(1) (188

Ill. 2d R. 307(a)(1)), controverted facts or the merits of the case are not decided. Bishop,

316 Ill. App. 3d at 1189. The only question in such an appeal is whether there was a

sufficient showing to affirm the order of the trial court granting or denying the relief

requested. Bishop, 316 Ill. App. 3d at 1189. Thus, the standard of review in an

interlocutory appeal generally is whether the trial court abused its discretion in granting

or denying the requested relief. Bishop, 316 Ill. App. 3d at 1189.

As noted, the trial court denied defendants’ motion to compel arbitration after

finding that defendants waived their right to arbitrate the instant dispute. The trial court

firstly found that, by operation of Rule 48(a) of the rules of the American Arbitration

Association in effect at the time of the case at bar, defendants’ actions in filing a

complaint against plaintiff Woods for alleged unpaid legal fees did not result in waiver of

defendants’ right to arbitrate the instant dispute. However, the trial court did find that

defendants waived their right to compel arbitration because defendant had filed two

motions to dismiss and a demand for a bill of particulars, and had actively and

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No. 1-08-0066

voluntarily participated in discovery by issuing interrogatories to plaintiffs, and by

issuing a subpoena for documents on a third-party in the case at bar.

Illinois courts disfavor a finding of waiver. Bishop, 316 Ill. App. 3d at 1191,

citing Jacob v. C & M Video, Inc., 248 Ill. App. 3d 654 (1993); First Condominium

Development Co. v. Apex Construction & Engineering Corp., 126 Ill. App. 3d 843

(1984); Brennan v. Kenwick, 97 Ill. App. 3d 1040 (1981). However, the right to compel

arbitration of a dispute can be waived as with any other contractual right. Bishop, 316 Ill.

App. 3d at 1191, citing Ure v. Wangler Construction Co., 232 Ill. App. 3d 492 (1992).

Illinois courts will find waiver of a party’s right to compel arbitration when a party’s

conduct is inconsistent with an arbitration clause, thus indicating an abandonment of the

right to arbitration. Bishop, 232 Ill. App. 3d at 1191, citing Burnett v. Safeco Insurance

Co., 227 Ill. App. 3d 167 (1992). Additionally, a party waives its right to arbitrate by

submitting arbitrable issues to a court for decision. Bishop, 316 Ill. App. 3d at 1191,

citing Kostakos v. KSN Joint Venture No. 1, 142 Ill. App. 3d 533 (1986). Illinois courts

also consider the delay in a party’s assertion of its right to arbitrate and any prejudice the

delay caused the plaintiff. Bishop, 316 Ill. App. 3d at 1191, citing Kostakos, 142 Ill.

App. 3d at 537.

Defendants contend that the trial court abused its discretion by denying their

motion to compel arbitration. Specifically, defendants argue that the trial court abused its

discretion because defendants did not submit arbitrable issues to the trial court for

decision. Defendants argue that their actions in filing two section 2-615 motions to

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No. 1-08-0066

dismiss and their demand for a bill of particulars were not inconsistent with their right to

arbitrate. Defendants also argue that their actions in serving plaintiffs with requests to

produce documents and written interrogatories, serving a subpoena for documents to a

third-party, and serving plaintiffs with a notice of deposition for plaintiff Woods were not

inconsistent with their right to arbitrate. Defendants further contend that the trial court

correctly ruled that defendants’ actions in filing a complaint against plaintiff Woods for

alleged unpaid legal fees did not result in waiver of defendants’ right to arbitrate the

instant dispute because of the operation of Rule 48(a) of the rules of the American

Arbitration Association in effect at the time of the case at bar. Finally, defendants also

remind this court that they asserted their right to arbitrate as an affirmative defense in

their answer to the plaintiffs’ complaint.

Plaintiffs contend that the trial court did not abuse its discretion by denying

defendant’s motion to compel arbitration. Plaintiffs, despite the trial court’s holding to

the contrary, firstly argue that defendants waived their right to arbitrate by pursuing the

fee case against plaintiff Woods. Plaintiffs contend that defendants’ actions in following

the fee case through to default judgment and pursuing the collection of the damage

amount in the default judgment in the turnover proceedings amounted to defendants’

waiver of the parties’ arbitration provision. Secondly, plaintiffs argue that defendants

waived the right to arbitrate by their actions in the case at bar. Specifically, plaintiffs

argue that defendants’ actions in filing two motions to dismiss, a bill of particulars,

issuing interrogatories to plaintiffs, issuing a subpoena for documents to a third-party,

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No. 1-08-0066

and by filing a notice for the deposition of plaintiff Woods constituted actions resulting

in waiver of the parties’ arbitration provision.

For the reasons that follow, we find that the trial court did not abuse its discretion

by denying defendants’ motion to compel arbitration. Before proceeding further, we note

our agreement with the trial court’s finding that defendant’s action against plaintiff

Woods for alleged unpaid legal fees did not waive defendants’ right to compel arbitration

of the current dispute. Defendants’ suit to recover alleged unpaid legal fees and

plaintiffs’ suit against defendants for alleged legal malpractice do not arise from the same

lawsuit and would not have required consideration of the same issues. Yates v. Doctor’s

Associates, Inc., 193 Ill. App. 3d 431, 441 (1990). As such, defendants’ conduct relating

to the suit to recover alleged unpaid legal fees should have no bearing on whether

defendants waived their right to compel arbitration in the current dispute.

However, we do find that defendants’ conduct in the case at bar waived their right

to compel arbitration.

As noted, defendants filed two motions to dismiss plaintiffs’ complaint pursuant

to section 2-615 of the Code (735 ILCS 5/2-615 (West 2004)), filed a demand for a bill

of particulars, issued a subpoena for documents to a third-party, served plaintiffs with

requests to produce documents and written interrogatories, and served plaintiffs with a

notice of deposition for plaintiff Woods.

In their brief to this court, defendants’ cite to Atlas v. 7101 Partnership, 109 Ill.

App. 3d 236 (1982), and to Kostakos v. KSN Joint Venture No. 1, 142 Ill. App. 3d 553

10
No. 1-08-0066

(1986), to support their argument that they did not waive their right to compel arbitration

by their actions in the instant dispute.

The plaintiff in Atlas filed a complaint, an amended complaint, and two motions

for preliminary injunction. After weighing the plaintiff’s actions against what was then

Rule 47(a) of the rule of the American Arbitration Association, the court determined that

plaintiff did not waive his right to compel arbitration. In making this finding, the court

noted that plaintiff’s actions in filing a complaint, amended complaint, and two motions

for preliminary injunctions constituted “limited legal maneuverings.” Atlas, 109 Ill. App.

3d at 241.

However, unlike Atlas, defendants’ actions in the case at bar were not of a limited

nature. Significantly, defendants actively participated in discovery by issuing

interrogatories to plaintiffs, by issuing a subpoena for documents to a third-party, and by

filing a notice of deposition of plaintiff Woods. Kostakos, 142 Ill. App. 3d at 537 (noting

that the defendants did not file interrogatories or take depositions in affirming a trial

court’s granting of the defendants’ motion to compel arbitration); Schroeder Murchie

Laya Associates, Ltd. V. 1000 West Lofts, LLC, 319 Ill. App. 3d 1089, 1098 (2001)

(noting that the plaintiffs engaged in discovery in affirming the trial court’s order

denying the plaintiffs’ motion to compel arbitration). We note that the use of

interrogatories and subpoenas is not readily available in arbitration proceedings

according to the rules of the American Arbitration Association, as the rules leave use of

those procedures to the agreement of the parties to arbitration or to the discretion of the

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arbitrator. We also note that the availability of depositions is limited to large or complex

arbitrations and is left to the discretion of the arbitrator even in those situations.

The defendants in Kostakos filed a motion to quash summons, a motion to dismiss

for failure to join necessary parties, a motion to dismiss for failure to plead properly, a

reply to a petition to appoint a receiver, a request to admit facts, a request to produce, a

motion for issuance of a protective order, a demand for a bill of particulars and a motion

to produce documents, and participated in depositions taken by plaintiff. Kostakos, 142

Ill. App. 3d at 535. In affirming the trial court’s order compelling arbitration, the

Kostakos court found that the defendants had not waived their right to arbitration,

because the defendants did not submit arbitrable issues to the trial court for

determination. Kostakos, 142 Ill. App. 3d at 536-37. In making this finding, the court

noted that defendants did not file interrogatories or take depositions, procedures not

available in arbitration. Kostakos, 142 Ill. App. 3d at 537.

However, unlike Kostakos, defendants in the case at bar did file interrogatories

and did file notice for the deposition of plaintiff Woods. As noted, these procedures are

not readily available in arbitration proceedings according the rules of the American

Arbitration Association, as the rules leave use of those procedures to the agreement of the

parties to arbitration or to the discretion of the arbitrator.

Defendants in the case at bar received responses to their propounded

interrogatories, a procedure that we have already noted is not readily available in

arbitration. On the other hand, it is true that although defendants issued a third-party

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No. 1-08-0066

subpoena for documents, they received no such documents. It is also true that although

defendants filed a notice for the deposition of plaintiff Woods, there was no deposition.

However, the proper focus of our inquiry in the case at bar is whether defendants acted

inconsistently with their right to compel arbitration by attempting to further the defense

of this lawsuit by actively participating in the judicial forum, not whether defendants

were successful in that regard. Bishop, 316 Ill. App. 3d at 1191. The active participation

in this case was the motion practice of the defendants and their attempt to obtain

discovery through filing for interrogatories and depositions. Since defendants

participated in procedures not readily available in arbitration, we cannot say that the trial

court abused its discretion by finding that defendants waived their right to arbitrate this

dispute. The defendants’ actions in the case at bar, were not consistent with those of a

party intent on retaining the right to arbitrate.

If we were to follow the logic of the dissent, it would provide a party with the

option of obtaining or attempting to obtain discovery in the courthouse, when discovery

is not a matter of right under the arbitration process, and then when the discovery process

has been concluded request arbitration. Arbitration was designed as an efficient and

relatively inexpensive method of settling disputes. Atlas, 109 Ill. App. 3d at 240. It is an

alternate dispute resolution process. If we allow a party to file or defend a court action

with the intent to obtain discovery, the entire alternative dispute resolution process loses

its major objective. The costs and the time parameters for the party litigants become

prohibitive.

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CONCLUSION

For the foregoing reasons, we affirm the judgment of the circuit court of Cook

County. We cannot say that the trial court abused its discretion by finding that

defendants waived their right to arbitrate this dispute due to their actions in the case at

bar, by actively participating in the discovery process and in furtherance of their lawsuit.

Affirmed.

JUSTICE WOLFSON, dissenting:

Arbitration is a favored method of settling disputes in Illinois. Kostakos v. KSN

Joint Venture No. 1, 142 Ill. App. 3d 533, 536 (1986). Since arbitration is an efficient,

relatively inexpensive method of settling disputes, "a waiver of a right to arbitrate is not

to be lightly inferred." Atlas v. 7101 Partnership, 109 Ill. App. 3d 236, 240 (1982).

The parties had an admittedly valid arbitration clause in their engagement

agreement. They said their disputes "shall be resolved through binding arbitration," in

accord with American Arbitration Association (AAA) rules. The clause ended with

words the plaintiffs now say do not apply: "You acknowledge that by agreeing to

arbitration, you are relinquishing your right to bring an action in court and to a jury trial."

By agreeing to be bound by AAA rules, the parties adopted Rule 48(a): "No

judicial proceeding by a party relating to the subject matter of the arbitration shall be

deemed a waiver of the party's right to arbitrate." Am. Arb. Ass'n Com. R. 48(a) (2005).

True, a party can act in a manner which is inconsistent with its contractual right to

arbitrate. Schroeder Murchie Laya Associates, Ltd. v. 1000 West Lofts, LLC, 319 Ill.

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App. 3d 1089, 1095-96 (2001). But "limited legal maneuverings" of a party do not waive

its Rule 48(a) right to arbitrate. Atlas, 109 Ill. App. 3d at 241.

The existence of a waiver is determined "by the type of issues submitted, not by

the number of papers filed with the court." Kostakos, 142 Ill. App. 3d at 536-37. Simply

participating in the judicial forum does not demonstrate an abandonment of the right to

compel arbitration. Kostakos, 142 Ill. App. 3d at 537.

Here, the defendants filed two motions to dismiss, neither of them raising an

arbitrable issue. They did not file a counterclaim. Instead, they filed an answer that

contained an affirmative defense claiming a right to arbitrate the dispute. They filed a

notice for deposition, but there was no deposition. They issued a third-party subpoena

for documents, but received no documents. They filed interrogatories, and they received

the same kind of information they most likely would have been entitled to in an

arbitration proceeding. They did wait a long time before filing a motion to compel

arbitration, but the delay was no longer than that in Kostakos or Bishop v. We Care Hair

Development Corp., 316 Ill. App. 3d 1182, 1192 (2000).

In Bishop, the defendants waited 15 months before filing an answer setting up the

arbitration clause as an affirmative defense. The plaintiffs did not contend they were

prejudiced by the delay, and the court, as do we in this case, found no prejudice to the

plaintiffs. Bishop, 316 Ill. App. 3d at 1192. Contesting venue did not constitute waiver

in Bishop, 316 Ill. App. 3d at 1192. Filing a complaint, an amended complaint, and two

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motions for preliminary injunctions did not defeat the AAA Rule 48(a) "no waiver" of

arbitration provision in Atlas, 109 Ill. App. 3d at 241.

I see no real difference between this case and Kostakos. There, the defendants

filed an answer and participated in numerous procedural matters--including a motion to

quash service of summons, a motion to dismiss for failure to join necessary parties, a

motion to dismiss for failure to plead properly, a reply to a petition to appoint a receiver,

a request to admit facts, a request to produce, a motion for issuance of a protective order,

a demand for a bill of particulars, a demand for production of certain documents, and

participation in depositions taken by the plaintiff. In addition, the defendants moved to

dismiss the complaint for failure to attach a copy of the agreement at issue--something

that happened in this case. In Kostakos, as here, no arbitrable issues were submitted to

the trial court. We held the defendants' participation in the judicial forum "was not so

inconsistent with the contractual right to arbitrate as to indicate an abandonment of that

right." Kostakos, 142 Ill. App. 3d at 537.

In short, the plaintiffs are trying to slip out of their contractual duty to arbitrate.

We should not let it happen. I believe the trial court abused its discretion when it denied

the defendants' motion to compel arbitration.

The majority envisions dire consequences should the "logic of the dissent" be

followed. I do not see how requiring parties to fulfill their contractual obligations would

produce the calamitous scenario spun by the majority. Just like the Federal Arbitration

Act (9 U.S.C. §1 et seq. (2000)) establishes "a national policy favoring arbitration"

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(Preston v. Ferrer, __ U.S. __, 169 L. Ed. 2d 917, 923, 128 S. Ct. 978, 981 (2008)),

Illinois decisions, including Bishop and Kostakos, reflect a policy preference for

enforcement of arbitration clauses, judicial proceedings aside, especially when the parties

agree to adopt AAA Rule 48(a). The Rule and our cases draw the line: no waiver of

arbitration unless an issue presented in the judicial proceeding relates to the subject

matter of the arbitration. The defendants raised no such issue. We should hew to the

line, undeterred by visions of horrific discovery tactics. Even where those tactics include

(gasp!) the filing of interrogatories.

I respectfully dissent.

JUSTICE GARCIA, specially concurring:

I write separately to emphasize the deference we owe to the trial court in our

review of its order, which, in my judgment, determines the outcome of this interlocutory

appeal.

It is settled law that a motion to compel arbitration is subject to the deferential

standard of review of an abuse of discretion. Schroeder, 319 Ill. App. 3d at 1093-94.

"[T]he scope of review in an interlocutory appeal is normally limited to determining

whether the trial court abused its discretion in granting or refusing the requested

interlocutory relief." Jacob v. C & M Video, Inc., 248 Ill. App. 3d 654, 664, 618 N.E.2d

1267 (1993).

Our supreme court has also recognized that the abuse of

discretion standard is " ‘the most deferential standard of

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No. 1-08-0066

review available with the exception of no review at all.’ "

People v. Coleman, 183 Ill. 2d 366, 387, 701 N.E.2d 1063,

quoting M. Davis, A Basic Guide to Standards of Judicial

Review, 33 S.D. L.Rev. 469, 480 (1988). "An abuse of

discretion occurs where no reasonable person would agree

with the position adopted by the trial court." Schwartz v.

Cortelloni, 177 Ill. 2d 166, 176, 685 N.E.2d 871, 876

(1997). Thus, a "trial court cannot be said to have abused

its discretion if reasonable persons could differ as to its

decision." In re Adoption of D., 317 Ill. App. 3d 155, 160,

739 N.E.2d 109 (2000).

The only real difference between Kostakos and this case

lies in the question presented. In Kostakos, we were asked

to find an abuse of discretion in the trial court's decision

to order arbitration. We found no such abuse. Discretion

works in either direction; a trial court may order

arbitration or find waiver. In this case it found waiver.

The deference owed to the trial court's determination, the

standard we apply in reviewing its decision, remains the

same regardless of the outcome, public policy favoring

arbitration notwithstanding. (See Schroeder, 319 Ill. App.

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3d at 1095, where we rejected the contention that the

Arbitration Act "leaves no room for the exercise of

discretion.") While I agree that "limited legal

maneuvering" may not amount to waiver, I am not prepared to

find an abuse of discretion where the trial court has found

otherwise. Nor am I inclined to effectively substitute my

judgment for the trial court's in determining whether the

actions undertaken by the defendant's are truly limited

legal maneuvering rather than a conscious exercise of its

choice of forum.

I must also express mild disagreement with Justice

Gordon's assertion that "defendants' conduct relating to the

suit to recover alleged unpaid legal fees should have no

bearing on whether defendants waived their right to compel

arbitration in the current dispute." Slip op. at 10. I

submit that the defendants' decision to file suit for unpaid

legal fees, where the written engagement agreement with the

arbitration clause would play a role in the defendants'

unpaid legal fees action, suggests the defendants as lawyers

found a forum of choice in the circuit court. It also bears

noting that it is this very agreement in which the

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defendants agreed to relinquish their "right to bring an

action in court and to a jury trial." Yet, they brought the

unpaid legal fees action in court. And, when they filed

their appearance in the instant case, they also filed a

"jury trial" demand.

I submit this case turns on our standard of review.

Through the lens of that standard of review, there was a

sufficient showing to sustain the order of the trial court.

See Schroeder, 319 Ill. App. 3d 1093-96. Here, the trial

court determined the lawyers as defendants failed to act in

accordance with the arbitration clause; the defendants have

not persuaded us to disturb the trial court's ruling.

Because reasonable persons can differ as to the trial court's decision, as confirmed

by the dissent, we cannot say as a matter of law that the trial court abused its discretion.

See Kostakos, 142 Ill. App. 3d at 537.

20
 REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
(Front Sheet to be attached to each Opinion)
_________________________________________________________________
Please use the ]
following form:]
]
] JEFFREY WOODS, TANGO GRILL, INC.,
] THE HELIX GROUP, INC., and MICHAEL
] NELSON,
] Plaintiffs-Appellees,
] v.
]
] PATTERSON LAW FIRM, P.C., and
] THOMAS PATTERSON,
]
] Defendants-Appellants
Complete ]
TITLE ]
of Case. ]
_________________________________________________________________
Docket No. ] No. 1-08-0066
] Appellate Court of Illinois
COURT ] First District, First Division
]
] MARCH 31, 2008
Opinion Filed ] (Month, Day and Year)
_________________________________________________________________
JUSTICES ] JUSTICE ROBERT E. GORDON delivered the opinion
] of the court.
] WOLFSON, J., dissents.
] GARCIA, J., specially concurs.
_________________________________________________________________
APPEAL from the] Lower Court and Trial Judge(s) in form indicated
Circuit Court ] in margin:
of Cook County;] Appeal from the Circuit Court of Cook County.
the Hon:______ ]
Judge Presiding] Honorable Dennis J. Burke, Judge Presiding.
_________________________________________________________________
For APPELLANTS ]Indicate if attorney represents APPELLANTS or
John Doe of ]APPELLEES and include attorneys of counsel.
No. 1-08-0066

Chicago. ]Indicate the word NONE if not represented.
For APPELLEES, ]_________________________________________________
Smith and ] Mulherin, Rehfeldt & Varchetto, P.C.
Smith, of ] Wheaton, Illinois 60187
Chicago. ] Attorneys for Appellants
Brown, ] Attn: Patricia L. Argentati
of Counsel. ] Shana A. O’Grady
] OF COUNSEL
]
] James T. Nyeste
] Chicago, Illinois 60602
] Attorney for Appellants
]
Also add atty. ] Edward T. Joyce & Associates, P.C.
for third party] Chicago, Illinois 60603
appellants ] Attorneys for Appellees
or appellees. ] Attn: Edward T. Joyce
] Robert D. Carroll
] OF COUNSEL
___________________(USE REVERSE SIDE IF NEEDED___________________

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