Busch v. Mison

• Court: Appellate Court of Illinois
• Decided: September 15, 2008
• Docket: 1-07-2112 Rel
• Status: Published

Opinion

FIRST DIVISION SEPTEMBER 15, 2008

No. 1-07-2112

JOHN BUSCH and SHEB’ TUFI KUSHMA, ) Appeal from the ) Circuit Court of Plaintiffs, ) Cook County. v. ) ) MICHAEL K. MISON, ) No. 05 L 002823 ) Defendant-Appellees and ) Counterplaintiff-Appellee and ) Plaintiff-Appellee, ) ) The Honorable (John Busch, ) Moira S. Johnson. ) Judge Presiding. Counterdefendant-Appellant and ) Defendant-Appellant). )

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

This appeal concerns the legality of a rejection of an arbitration award under the

mandatory arbitration procedure (Supreme Court Rule 86)(155 Ill. 2d R 86) in the Municipal

division of the circuit court of Cook County.

Plaintiffs John Busch and Sheb’tufi Kushma brought a personal injury action against

defendant Michael K. Mison, alleging Mison negligently caused them injuries as a result of an

automobile collision. Mison brought a separate personal injury suit against Busch, seeking No. 1-07-2112

damages for injuries sustained in the same collision. The circuit court consolidated the separate

actions for “purposes of discovery and trial.” Then the consolidated action was submitted to

arbitration. One consolidated award was entered. Mison’s lawyers filed an Illinois Supreme

Court Rule 93(a) (166 Ill. 2d R. 93(a)) rejection in the circuit court that set off a flurry of motions

and responses concerning the question of exactly what had been rejected. That is, did the

rejection apply to the Bush and Kushma v. Mison lawsuit and the Mison v. Busch lawsuit? Or

did it apply only to the Mison v. Busch lawsuit?

The circuit court held Rule 93(a) did not require specific notices of rejection as to each

lawsuit, but certified the following question of law for an interlocutory appeal pursuant to

Supreme Court Rule 308 (155 Ill. 2d R. 308):

“Whether Illinois Supreme Court Rule 93(a) requires a party who

is both a plaintiff and a defendant in two separately filed personal

injury lawsuits stemming from an auto accident, which were

consolidated for purposes of discovery and trial, to file separate

notices of rejection of the separate arbitration awards in order to

preserve his right to proceed to trial in each lawsuit.”

BACKGROUND

This appeal stems from two separate lawsuits filed on behalf of individuals involved in a

two-car motor vehicle collision. On December 30, 2004, Busch and Mison were involved in a

motor vehicle collision at the intersection of Kinzie and LaSalle Streets in Chicago. Kushma was

-2- No. 1-07-2112

a passenger in Busch’s vehicle.

On March 10, 2005, Busch and Kushma brought a negligence suit against Mison in the

law division of the circuit court of Cook County (law division suit), seeking damages for

personal injuries they sustained in the accident. Mison filed a counterclaim for contribution

against Busch. The law firm of Beverly & Pause represented Mison as the defendant in the law

division suit. On June 27, 2006, Mison filed a separate suit against Busch in the municipal

division of the circuit court (municipal division suit), seeking damages for personal injuries he

sustained in the same collision. The law firm of Burnes & Libman represented Mison as the

plaintiff in the municipal division suit. After Mison filed a motion for consolidation, the trial

court consolidated the cases “for the purposes of discovery and trial.”

On February 1, 2007, the consolidated case proceeded to mandatory arbitration.

Following a hearing, the two of the three arbitrators entered an award finding “in favor of Busch

and against Mison for [$8,500] and for Kushma against Mison for [$6,000].” In the same order,

the arbitrators found “against Mison as a plaintiff and for Busch as a defendant.” The arbitrators

rejected all of the counterclaims. As noted, there was only one award.

On February 26, 2007, Mison filed a single notice of rejection of the arbitration award

pursuant to Supreme Court Rule 93(a) using the municipal court number instead of the

consolidated court number. Busch, in his capacity as counterdefendant in the law division suit

and defendant in the municipal division suit, filed a joint motion to enter judgment on the

arbitrators’ award and strike Mison’s rejection of the award, arguing the notice of rejection failed

to comply with Supreme Court Rule 93(a) and failed to reject the arbitration award entered in the

-3- No. 1-07-2112

law division lawsuit. Busch and Kushma filed a motion to enter judgment on the arbitrators’

award entered in their favor in the law division lawsuit.

On June 11, 2007, the trial court denied both motions. The trial court also rejected

Busch’s interpretation of Rule 93(a) as requiring specific notices of rejection for each arbitration

award. The trial court granted Busch’s motion to certify a question for interlocutory appeal

pursuant to Supreme Court Rule 308(a) (155 Ill. 2d R. 308(a)).

ANALYSIS

An interlocutory appeal pursuant to Supreme Court Rule 308 is ordinarily limited to the

question certified by the circuit court. Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 153

(2007). Because a certified question must be a question of law, we review it de novo.

Townsend, 227 Ill. 2d at 154. When reviewing a certified question, we answer only the question

that has been posed. Applebaum v. Rush University Medical Center, 376 Ill. App. 3d 993, 995

(2007). In certain circumstances, however, we are obligated to go beyond the question presented

to consider the appropriateness of the orders giving rise to the appeal. Billerbeck v. Caterpillar

Tractor Co., 292 Ill. App. 3d 350, 357 (1997).

Supreme Court Rule 93(a) provides, in relevant part:

“Within 30 days after the filing of an award with the clerk of the

court, and upon payment to the clerk of the court of the sum of

$200 for awards of $30,000 or less or $500 for awards greater than

$30,000, any party who was present at the arbitration hearing,

either in person or by counsel, may file with the clerk a written

-4- No. 1-07-2112

notice of rejection of the award and request to proceed to trial,

together with a certificate of service of such notice on all other

parties. The filing of a single rejection shall be sufficient to enable

all parties except a party who has been debarred from rejecting the

award to proceed to trial on all issues of the case without the

necessity of each party filing a separate rejection.” 166 Ill. 2d R.

93(a).

The parties agree resolution of the certified question depends in part on what impact, if

any, the trial court’s consolidation of the two separate lawsuits “for the purposes of discovery and

trial” had on Mison’s rejection of the arbitration award under Rule 93(a).

Section 2-1006 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1006 (West 2006))

provides, “[a]n action may be severed, and actions pending in the same court may be

consolidated, as an aid to convenience, whenever it can be done without prejudice to a

substantial right.”

Illinois courts have recognized three distinct forms of consolidation: (1) where several

actions are pending involving the same subject matter, the court may stay proceedings in all but

one of the cases and determine whether the disposition of one action may settle the others; (2)

where several actions involve an inquiry into the same event in its general aspects, the actions

may be tied together, but with separate docket entries, verdicts and judgment, the consolidation

being limited to a joint trial; and (3) where several actions are pending which might have been

brought as a single action, the cases may be merged into one action, thereby losing their

-5- No. 1-07-2112

individual identity, to be disposed of as one suit. Northwest Water Comm v. Carlo V. Santucci,

Inc., 162 Ill. App. 3d 877, 890-91 (1987); Shannon v. Stookey, 59 Ill. App. 3d 573, 577 (1978).

Busch contends that because the two suits were consolidated only for judicial economy

and convenience, Busch and Kushma--the plaintiffs in the law division suit--were not bound by

Mison’s notice of rejection of the arbitration award entered only in the municipal division suit.

See Ellis v. AAR Parts Trading, Inc., 357 Ill. App. 3d 723-731 (2005) (because the cases were

consolidated for discovery only, the Pinol plaintiffs were “not bound by orders entered in the

Ellis case”); Nationwide Mutual Insurance Co. v. Filos, 285 Ill. App. 3d 528, 532 (1996)

(consolidation done only for convenience “did not merge the causes into a single suit, or change

the rights of the parties, or make those who were parties in one suit parties in another”); Kassnel

v. Village of Rosemont, 135 Ill. App. 3d 361 (1985).

Mison counters that the record reflects the consolidation of the lawsuits resulted in the

two separate suits being merged into one action and losing their separate identities. Mison

contends that because the two suits were consolidated into one action, his notice of rejection was

sufficient to require all of the issues in the case to proceed to trial.

We agree with Mison.

In Northwest Water Comm’n v. Carlo V. Santucci, Inc., 162 Ill. App. 3d 877, 891 (1987),

the court held it was clear “the causes of action herein were consolidated for a much broader

reason than mere convenience, i.e., for the purposes of discovery and trial.” The water

commission filed an “ ‘Emergency Motion *** To Consolidate Cases,’ seeking to combine its

action against Santucci with Price’s suit for an accounting ‘for purposes of discovery and trial.’ ”

-6- No. 1-07-2112

Northwest Water Comm’n, 162 Ill. App. 3d at 882. According to the motion to consolidate, “

‘[t]he consolidation of these actions would eliminate a multiplicity of suits, prevent unnecessary

litigation, and avoid duplication of efforts and expense, thereby conserving the court’s time and

expediting the disposition of the actions.’ ” Northwest Water Comm’n, 162 Ill. App. 3d at 882.

The trial court granted the motion for consolidation, explicitly ordering that the cases were

“consolidated for the purposes of discovery and trial.” The appellate court held “[s]uch

purposes indicate that the rights of all of the parties would be finally litigated and settled in one

action.” Northwest Water Comm’n, 162 Ill. App. 3d at 891.

The record here clearly reflects the trial court consolidated the two separately filed suits

into one action that was disposed of by one arbitration award with three distinct findings, not two

separate arbitration awards as the certified question presupposes.

Mison’s motion to consolidate contended that since “both cases arise from the same set of

facts and involve the same witnesses,” both lawsuits should “be consolidated into one.”

(Emphasis added.) In response, the trial court consolidated the law division suit and the

municipal division suit “for the purposes of discovery and trial.” We find the trial court’s

consolidation order indicates “the rights of all of the parties would be finally litigated and settled

in one action.” See Northwest Water Comm’n, 162 Ill. App. 3d at 891. Our conclusion is

supported by the fact that the arbitrators entered only one award with three distinct findings, not

separate arbitration awards: “We the undersigned arbitrators, having been duly appointed and

sworn (or affirmed), make the following award.” (Emphasis added.) That is, “award,” not

“awards.” Had the lawsuits gone to trial, judicial economy would have called for one trial, one

-7- No. 1-07-2112

jury, and one judge.

Our supreme court has recognized that “[o]nce the arbitration panel has made its award,

the parties must accept or reject the award in its entirety.” Cruz v. Northwestern Chrysler

Plymouth Sales, Inc., 179 Ill. 2d 271, 279 (1997). Relying on Supreme Court Rule 92(c), the

supreme court held: “If none of the parties file a notice of rejection of the award and request to

proceed to trial within the time specified under the rules, the circuit court has no real function

beyond entering judgment on the award.” Cruz, 179 Ill. 2d at 279, citing 155 Ill. 2d R. 92(c) (“In

the event none of the parties files a notice of rejection of the award and requests to proceed to

trial within the time required herein, any party thereafter may move the court to enter judgment

on the award.”)

We read Rule 92(c) as concluding that any rejection of any part of the award applies to

the entire award.

In this case, Mison’s contentions are that his rejection with the municipal number only

rejected the entire award. That is the way he captioned his rejection. Although the single

arbitration award in the consolidated case contained three distinct findings, Mison’s notice of

rejection specifically provides that plaintiff, Mison, “rejects the Award of the Arbitrator’s entered

in this cause on February 1, 2007, in favor of the Defendant, and requests a trial before the

court.” (Emphasis added.) The notice of rejection makes no reference to the arbitrators’ other

findings in the award, and we find that once a rejection is filed, the entire award is rejected. We

believe that was the intention of the Rule.

The following facts support our conclusion that Mison’s attorneys–-Burnes & Libman--

-8- No. 1-07-2112

intended to reject the entire award. To rule otherwise could require the filing of many separate

notices of rejection.

Mison’s personal injury lawyers would not have had the authority to reject the arbitrators

award on the law division case where Mison is a defendant and represented by insurance counsel.

If Mison’s rejection showed the consolidated case number, it clearly would have been a

valid rejection based on the arguments of all of the parties.

Although the certified question is carelessly phrased, we now proceed to answer it as the

supreme court has ordered-–“on the merits.” Our conclusion reaches the certified questions and

beyond it to the trial court’s underlying orders. See Thompson v. Gordon, 221 Ill. 2d 414, 434

(2006) (“The appellate court also did not err in going beyond the certified question to consider

the propriety of the trial court’s underlying order striking Ramisch’s affidavit”). See also Walker

v. Carnival Cruise Lines, Inc., No. 1-07-3538, slip op. at 7 (May 21, 2008) (“However, in the

interest of judicial economy and reaching an equitable result, a reviewing court may go beyond

the certified question and consider the appropriateness of the order giving rise to the appeal”).

This court holds that in a case consolidated for discovery and trial, Rule 93(a) is satisfied

by a single notice of rejection that covers any part of the award made in mandatory arbitration

proceedings.

In addition, I agree completely with the special concurrence, and particularly with how

the special concurrence explained and distinguished Cruz, 179 Ill. 2d at 279. Justice Garcia

stated in his special concurrence that I interpreted Cruz less broadly than he did. I think we are

on the exact same page. I agree with him that “[i]n Cruz, the [supreme] court never addressed

-9- No. 1-07-2112

the requirements of a rejection notice,” that “the situation in Cruz is not present here,” and that

Cruz supports our conclusion that “where a rejection notice of an arbitration award is filed, the

notice is a rejection of the award in its entirety.” Slip op. at __ .

CONCLUSION

We affirm the decision of the circuit court of Cook County.

Affirmed.

WOLFSON, J., dissents.

GARCIA, J., specially concurs.

-10- 1-07-2112

JUSTICE WOLFSON, dissenting:

I agree we should reach the issues in this case.

Considerations of judicial economy persuade me we should put

aside the fact that addressing the certified question directly,

on it merits, does nothing to resolve the rejection issue ruled

on by the trial court. The certified question assumes the

existence of “separate arbitration awards.” There was only one

award, with three findings.

The majority finesses the precise wording of the certified

question to address an issue never before decided by a reported

decision in this State. That is, is a mandatory arbitration

rejection effective when it clearly is intended to apply only to

one of several discrete findings in the arbitration award? I

believe the correct answer to that question is no.

There is nothing surprising or unexpected about multiple

claims being resolved in a single award, as was done here.

Illinois Supreme Court Rule 92(b) clearly anticipates that

situation: “The award shall dispose of all claims for relief.”

“Award” is used in the singular throughout Rule 92, never in the

plural.

The arbitrators adhered to Rule 92(b) when they framed an

award that disposed of all the claims for relief. It was a

single award in a case where the law division and municipal

-11- 1-07-2112

division lawsuits had been “consolidated for discovery and

trial.” That meant “the rights of all the parties would be

finally litigated and settled in one action.” Northwest Water

Commission v. Santucci, Inc., 162 Ill. App. 3d 877, 891 (1987).

Now, then, can rejecting only one of the three findings be a

rejection of the entire award? Once an award is made “the

parties must accept or reject the award in its entirety.”

(Emphasis added.) Cruz v. Northwestern Chrysler Plymouth Sales,

Inc., 179 Ill. 2d 271, 279 (1997). That is not what Mison’s

lawyers did.

I read Rule 92(c) as requiring a rejection to apply to the

entire award, not just part of it. A partial rejection is no

rejection at all. The rejecting party cannot pick and choose

from within the award.

The record reflects Mison’s attorneys in the municipal

division suit–-Burnes & Libman–-clearly intended to reject only

the arbitrators’ finding against Mison as a “plaintiff” and for

Busch as a “defendant” when they filed the notice of rejection.

That is the way they captioned their notice. Although the single

arbitration award in the consolidated case contained three

distinct findings, Mison’s notice of rejection specifically

provides that plaintiff, Mison, “rejects the Award of the

Arbitrators entered in this cause on February 1, 2007, in favor

-12- 1-07-2112

of the Defendant, and requests a trial before the court.”

(Emphasis added.) The notice of rejection makes no reference to

the arbitrators’ other findings in the award.

In sum, the following facts support the conclusion that

Mison’s attorneys–-Burnes & Libman--intended to reject only the

arbitrators’ findings with regard to Mison as plaintiff and Busch

as defendant in the municipal division suit, not all of the

findings reached by the arbitrators:

! Mison’s attorneys in the law division suit where

he was a defendant–-Beverly & Pause–-did not file

a separate notice of rejection.

! Mison’s notice of rejection contains only the

caption and case number for the municipal division

suit filed by Mison; that is Mison as “plaintiff,”

Busch as “defendant.” He rejected only the award

“in favor of the defendant,” that is, Busch.

! Mison did not include any reference to the

arbitrators’ findings with regard to the law

division suit or the counterclaims in the notice

of rejection.

! Mison did not serve the notice of rejection on

Kushma individually or on Kushma’s attorneys in

the law division suit.

-13- 1-07-2112

Although I agree that all of the claims became part of one

case when the separate suits were consolidated for the purposes

of discovery and trial, I would find Rules 92(c) and 93(a), read

together, require Mison to reject the arbitration award in its

entirety, not just one of the arbitrators’ individual findings.

See Cruz, 179 Ill. 2d at 279, citing 155 Ill. 2d R. 92(c).

If Mison’s insurance company lawyers wanted to reject the

portion of the award that granted damages to Busch and Kushma,

they easily could have done so. It takes no great stretch of the

imagination to see that Burnes & Libman were not the least bit

concerned about a judgment against Mison in his role as defendant

in the law division lawsuit. Going before a jury only on the

Mison v. Busch claim would increase chances for recovery.

I believe that in a case consolidated for discovery and

trial Rule 93(a) is satisfied by a single notice of rejection

that covers all parts of the award or awards made in mandatory

arbitration. But where, as here, there is only one award and

only a partial rejection of it, the rejection is a nullity and

judgment should be entered on all findings in the arbitrators’

award.

Nothing in the relevant Supreme Court rules authorizes

piecemeal rejection. We take the rules as we find them. We

should not rewrite them to reach a favored result. I

respectfully dissent.

-14- 1-07-2112

JUSTICE GARCIA, specially concurring.

I write separately because I read the supreme court's

decision in Cruz v. Northwestern Chrysler Plymouth Sales, Inc.,

179 Ill. 2d 271, 688 N.E.2d 653 (1997), more broadly than Justice

Gordon. I also find words of caution necessary regarding the

view of our esteemed colleague in dissent.

Justice Wolfson's position, that a rejection notice may be

challenged as a nullity where the rejection notice lists one of

several findings in an arbitration award, would open the door to

more litigation on issues collateral to the claims of the

parties. Counsel henceforth seeking to bar rejections would

undoubtedly come up with creative arguments to challenge

carelessly phrased (or not so carelessly phrased) rejection

notices. To open the door to such challenges is, I submit, at

odds with the stated objective of mandatory court-annexed

arbitration of making litigation less "costly, complicated and

time consuming." Cruz, 179 Ill. 2d at 280.

The language the dissent quotes from Cruz that " 'the

parties must accept or reject the award in its entirety' "

(emphasis in original) (slip op. at __, quoting Cruz, 179 Ill. 2d

at 279), is no barrier to our conclusion that the rejection

notice here satisfies Rule 93. In Cruz, the court never

-15- 1-07-2112

addressed the requirements of a rejection notice. The quoted

language comes from the appellate court decision the supreme

court determined took the correct approach of making clear to

plaintiffs that if the relief sought goes beyond that which the

arbitrators awarded, the only recourse plaintiffs have is to

reject the award in its entirety. Plaintiffs cannot accept the

award with the expectation of obtaining additional relief before

the circuit court when judgment is entered on the award. The

judgment entered by the circuit court may not exceed the

arbitration award; plaintiffs cannot cherry-pick the relief

granted in the arbitration proceedings; it is all or nothing. Of

course, the situation in Cruz involving plaintiffs is not present

here. Nor is the situation present here the mirror image of the

Cruz situation. Here, there was nothing for Mison to cherry-

pick; there was only one relief available to him--to proceed to

trial.

I submit, the Cruz statement that an award must be accepted

or rejected in its entirety means simply what it says--that where

a rejection notice of an arbitration award is filed, the notice

is a rejection of the award in its entirety. It is of no

consequence that the rejection notice lists one, none or all of

the findings in the award. This conclusion is consistent with

the provision in Rule 93 that "[t]he filing of a single rejection

-16- 1-07-2112

shall be sufficient to enable all parties *** to proceed to trial

*** without the necessity of each party filing a separate

rejection." 166 Ill. 2d R. 93(a). That the rejection notice

here, however carelessly written, is a rejection sufficient to

enable Mison to proceed to trial is in line with the purpose of

the mandatory court-annexed arbitration system, meant as an

alternative to a civil trial, which a litigant should not be

denied simply because his counsel lists the one finding in the

arbitration award that pertains to his client. This leads to my

last point.

Justice Wolfson seeks to prove too much in his claim that

"Mison's attorneys *** intended to reject only the arbitrators'

findings with regard to *** the municipal division suit."

(Emphasis added.) Slip op. at __. That is a conclusion the

dissent draws. Reasonable minds differ as to whether that is the

only conclusion that can be drawn based upon the facts the

dissent marshals. Irrefutable, however, is the clear intent

manifested by Mison's rejection notice to proceed to trial.

-17- REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT (Front Sheet to be attached to each Opinion) Please use the ] following form: ] ] JOHN BUSCH and SHEB’ TUFI KUSHMA, ] ] Plaintiffs, ] v. ] ] MICHAEL K. MISON, ] Defendant-Appellees and ] Counterplaintiff-Appellee and ] Plaintiff-Appellee, ] ] (John Busch, ] ] CounterDefendant-Appellant and ] Defenda nt-Appellant). Complete ] TITLE ] of Case. ] Docket No. ] No. 1-07-2112 ] Appellate Court of Illinois COURT ] First District, First Division ] ] SEPTEMBER 15, 2008 Opinion Filed ] (Month, Day and Year) JUSTICES ] PRESIDING 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 Moira S. Johnson, Judge Presiding. For APPELLANTS ]Indicate if attorney represents APPELLANTS or John Doe of ]APPELLEES and include attorneys of counsel. Chicago. ]Indicate the word NONE if not represented. For APPELLEES, ]----------------------------------------------------------------------------------------------- Smith and ] Crisham & Kubes, Ltd. Smith, of ] Chicago, Illinois 60602 Chicago. ] Attorneys for Appellant, John Busch Brown, ] Attn: Thomas M. Crisham; Jean M. Predergast; of Counsel. ] and Clare J. Quish ] OF COUNSEL Also add atty. ] for third party ] Beverly & Pause appellants ] Chicago, Illinois 60602 or appellees. ] Attorneys for Appellee ] Attn: Justin D. Wine ] OF COUNSEL ] ___________________(USE REVERSE SIDE IF NEEDED_________________________________