Employer's Consortium, Inc. v. Aaron

698 N.E.2d 189, 298 Ill. App. 3d 187, 232 Ill. Dec. 351
CourtAppellate Court of Illinois
DecidedJuly 20, 1998
Docket3-97-0393
StatusPublished
Cited by24 cases

This text of 698 N.E.2d 189 (Employer's Consortium, Inc. v. Aaron) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Employer's Consortium, Inc. v. Aaron, 698 N.E.2d 189, 298 Ill. App. 3d 187, 232 Ill. Dec. 351 (Ill. Ct. App. 1998).

Opinion

JUSTICE DOYLE

delivered the opinion of the court:

Plaintiffs, Employer’s Consortium, Inc., and Cory & Associates, Inc., sued to recover on promissory notes made by defendant, Carrie A. Aaron. The case was referred to mandatory arbitration. The arbitrators found the plaintiffs had not participated in good faith and in a meaningful way pursuant to Supreme Court Rule 91(b) (145 111. 2d R. 91(b)). Based on this finding, the trial court debarred the plaintiffs from rejecting the arbitrator’s award. Plaintiffs appealed the trial court’s ruling. We affirm.

Plaintiffs’ amended complaint alleged defendant owed approximately $33,000 on 11 separate promissory notes. Defendant’s answer admitted making the notes but denied defaulting and asserted several affirmative defenses. Defendant was present with her attorney at the arbitration hearing on January 14, 1997. Plaintiffs were represented by counsel.

Plaintiffs’ attorney made an opening statement but did not call any witnesses. The chairperson for the arbitrators offered plaintiffs’ attorney the opportunity to contact any potential witnesses. Plaintiffs’ attorney declined to call any witnesses and did not request a continuance. Plaintiffs’ attorney then rested the case and submitted the unverified complaint along with the attached copies of the promissory notes to the arbitration panel. The arbitration panel made an award in favor of defendant. The arbitration panel also entered a unanimous Rule 91(b) finding that plaintiffs failed to participate in good faith and in a meaningful manner and listed as the factual basis therefor “failure to present any evidence.”

On January 31, 1997, defendant filed a motion to bar rejection of arbitration. Defendant attached the affidavit of her attorney in support of the motion. Plaintiffs filed a written response including affidavits from plaintiffs’ counsel and Andrew Corey. Plaintiffs’ first affidavit stated inter alia that their counsel was informed the night before the arbitration hearing that Andrew Cory, president of the plaintiff corporations, would be unable to attend. The affidavit of Andrew Cory stated that he “was outside the State of Illinois and was unable to attend the arbitration.” Defendant’s motion to bar rejection was granted on March 11, 1997. Following denial of their motion for reconsideration, plaintiffs appealed.

Plaintiffs present a single issue for review, namely, whether the trial court properly debarred plaintiffs from rejecting the arbitration award based on the panel’s finding that the plaintiffs failed to participate in good faith and in a meaningful manner as is required by Rule 91(b).

This issue requires a two-part analysis. First, we must consider whether the trial court’s finding that plaintiffs failed to participate in good faith and in a meaningful manner was against the manifest weight of the evidence. Martinez v. Gaimari, 271 Ill. App. 3d 879, 883 (1995). Second, we must consider whether debarring plaintiffs from rejecting the award was an abuse of discretion. Williams v. Dorsey, 273 Ill. App. 3d 893, 901 (1995).

The supreme court adopted Rule 91(b), requiring good-faith participation at mandatory arbitration hearings. That rule provides in pertinent part:

“(b) Good-Faith Participation. All parties to the arbitration hearing must participate in the hearing in good faith and in a meaningful manner. If a panel of arbitrators unanimously finds that a party has failed to participate in the hearing in good faith and in a meaningful manner, the panel’s finding and factual basis therefor shall be stated on the award. Such award shall be prima facie evidence that the party failed to participate in the arbitration hearing in good faith and in a meaningful manner and a court, when presented with a petition for sanctions or remedy therefor, may order sanctions as provided in Rule 219(c), including, but not limited to, an order debarring that party from rejecting the award, and costs and attorney fees incurred for the arbitration hearing and in the prosecution of the petition for sanctions, against that party.” 145 111. 2d R. 91(b).

The committee comments to this rule indicate the intent of the rule was to prevent parties and lawyers from abusing the arbitration process by refusing to participate. 145 Ill. 2d R. 91, Committee Comments. Arbitration is not to be considered simply a hurdle to cross on the way to trial. 145 Ill. 2d R. 91, Committee Comments. The purpose of mandatory arbitration is to subject a case to the type of adversarial testing that would be expected at trial. Martinez, 271 Ill. App. 3d at 883-84.

Supreme Court Rule 91(b) provides that the finding of an arbitration panel that a party did not participate in good faith is prima facie evidence of that fact. 145 Ill. 2d R. 91(b). The party subject to sanctions of Rule 91(b) has the burden of presenting evidence sufficient to rebut the prima facie evidence. Martinez, 271 Ill. App. 3d at 883.

Plaintiffs argue that less deference should be given to the panel’s finding when a report of proceedings exists. Plaintiffs rely on Webber v. Bednarczyk, 287 Ill. App. 3d 458 (1997), and Williams, 273 Ill. App. 3d at 896-97, in asserting that less deference is due a Rule 91(b) finding when a report of proceedings is available. Webber, however, is inapposite. Webber stands for the contrary proposition that a trial court should not impose sanctions under Rule 91(b) in the absence of a finding by the arbitration panel without reviewing a transcript of the proceedings. Webber, 287 Ill. App. 3d at 463. Similarly, Williams does not provide guidance in this case, as it does not directly discuss the deference due findings under Rule 91(b) but instead discusses sanctions to be imposed for violations of Supreme Court Rule 237 (166 Ill. 2d R. 237). Williams, 273 Ill. App. 3d at 898-99. Therefore, we find no reason to reinterpret the clear language of Rule 91(b) that the finding of the arbitration panel is prima facie evidence of a failure to participate in good faith and in a meaningful manner.

Here, the record does not provide sufficient evidence to rebut this prima facie finding. On the date of the hearing, plaintiffs’ counsel appeared before the arbitration panel. She made a brief opening statement and submitted a copy of the unverified complaint along with the attached exhibits to the arbitrators. The chairperson of the arbitrators then offered plaintiffs’ counsel the opportunity to contact any witnesses. Plaintiffs’ counsel did not call any witnesses, nor did she request a continuance. The panel then entered an award in favor of defendant and made the unanimous finding that the plaintiffs had failed to participate in good faith and in a meaningful manner as required by Rule 91(b).

Plaintiffs concede that their counsel’s performance before the panel was ineffective. Plaintiffs admit in their brief that “[plaintiffs’ counsel may have been unprepared or even inept” and that plaintiffs’ presentation “may have been considered sloppy and unprepared participation.” Plaintiffs’ counsel had several options. For example, she could have requested a continuance to allow witnesses to appear. She could also have examined the defendant, who was present, regarding the notes. Plaintiffs’ counsel, however, did nothing and rested her case solely on the complaint.

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Cite This Page — Counsel Stack

Bluebook (online)
698 N.E.2d 189, 298 Ill. App. 3d 187, 232 Ill. Dec. 351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/employers-consortium-inc-v-aaron-illappct-1998.