specially concurring in part and dissenting in part:
I concur with the majority’s holding that the trial court had personal and subject matter jurisdiction. However, I dissent from the majority’s claim that the trial court lacked the authority to enter monetary relief pursuant to an application to compel arbitration in accordance with the Uniform Arbitration Act (Act) (710 ILCS 5/1 et seq. (West 2000)). The majority believes that relief can be granted only through a contempt proceeding to compel obedience...to an order to compel.
I believe a court need issue only one order to compel. A successful motion, under section 2 of the Act, is sufficient to require a defendant to arbitrate. Here, the hearing on the motion to compel arbitration gave American Family the same opportunity to respond as a petition for rule to show cause would have. Section 2 is titled “Proceedings to compel or stay arbitration,” suggesting that the very nature of the motion is to compel a party to arbitrate or explain why arbitration is not proper. The statute requires the court to compel arbitration when appropriate. Forcing Cleeland to file a petition for a rule to show cause is simply redundant.
The sole issue in a proceeding to compel arbitration is whether there is an agreement to arbitrate. Nelson v. Roger J. Lange & Co., 229 Ill. App. 3d 909, 594 N.E.2d 391 (1992). If an agreement exists, the court must order arbitration. 710 ILCS 5/2 (West 2000). The opportunity for American Family to contest the existence or applicability of the arbitration agreement was at the proceeding to compel arbitration, not at a needlessly repetitive “show cause” hearing.
Furthermore, the majority claims that the court exceeded its authority when, acting on Cleeland’s motions, it appointed arbitrators, set the arbitration hearing, confirmed the arbitration award, and entered a monetary judgment on that award. However, the court clearly acted within the authority granted to it in the Act. The statute explicitly provides the court with the authority to confirm the arbitration award (710 ILCS 5/11 (West 2000)) and to enter a judgment on that award (710 ILCS 5/14 (West 2000)). Moreover, the power to appoint arbitrators is not limited to the appointment of arbitrators about which both parties agree. See Anderson v. Safeway Insurance Co., 10 Ill. App. 3d 597, 295 N.E.2d 117 (1973) (holding that where an insurance policy contained a valid arbitration clause and the insurer was estopped from denying coverage, the court properly appointed an arbitrator to arbitrate the claim). Finally, the statute indicates that the court has the power to direct the arbitrators to proceed promptly to resolve the controversy. See 710 ILCS 5/5 (West 2000).
Requiring Cleeland to file a rule to show cause before the court may rule under the authority provided it by the Act is superfluous and uneconomical. The trial court acted well within its authority in granting the plaintiff relief. I would grant the petition for rehearing and affirm the judgment of the circuit court of Kankakee County.