Lopez v. Miller

Opinion

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 1-05-1035

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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