Morales v. Mongolis

FOURTH DIVISION
December 11, 1997

No. 1-96-1051

MATIAS MORALES, )
)
Plaintiff-Appellee, ) Appeal from the
) Circuit Court
) of Cook County.
v. )
)
)
DINA MONGOLIS, )
) Honorable
) EDWIN J. RICHARDSON,
Defendant-Appellant. ) Judge Presiding.


JUSTICE SOUTH delivered the opinion of the court:

On June 30, 1993, plaintiff, Matias Morales, brought this
action against defendant, Dina Mongolis, to recover damages
resulting from the alleged negligence of Mongolis in driving her
automobile. On March 24, 1994, Morales filed a request for
admission of facts. On April 11, 1994, the circuit court quashed
the request, stating that the matters contained therein were more
suited to a discovery deposition.
Morales filed his notice for the discovery deposition of
Mongolis on June 28, 1994. The deposition was originally
scheduled for August 4, 1994, but did not proceed on that day.
Thereafter, Mongolis failed to appear for her scheduled discovery
deposition on approximately seven occasions. On three occasions,
due to Mongolis cancelling her discovery deposition without
providing sufficient notice, Morales was forced to pay appearance
fees for the court reporter who had already arrived at Morales'
attorney's office.
On June 21, 1995, Morales filed a motion for sanctions that
set forth several prior attempts to obtain the discovery
deposition of Mongolis and asked for relief, including an
assessment of attorney fees and expenses against Mongolis and her
attorney. The motion also requested that Mongolis be compelled
to appear for her deposition within seven days, that she be
barred from testifying at trial, and that her answer be stricken.
On June 23, 1995, the circuit court entered an order
compelling Mongolis to appear for her discovery deposition on or
before June 30, 1995, barring her from testifying as a witness if
she failed to appear for her deposition and continuing the motion
for costs and fees to July 5, 1995. On June 29, 1995, Morales
filed a notice to compel the appearance of Mongolis pursuant to
Supreme Court Rule 237(b) (134 Ill. 2d R. 237(b)). Mongolis
never appeared for her discovery deposition, and she was
consequently barred from testifying as a witness pursuant to the
June 23, 1995, court order.
On July 5, 1995, the circuit court entered an order
assigning this matter to mandatory arbitration. The circuit
court also entered an order awarding $65 in costs and $108 in
attorney fees against Mongolis and her lawyers pursuant to
Morales' motion for sanctions. On August 4, 1995, Mongolis filed
a motion to reconsider the entry of sanctions, and the motion was
denied on September 18, 1995.
The case was scheduled for mandatory arbitration on October
26, 1995. On October 19, 1995, Mongolis filed a motion to be
excused from appearing at the arbitration hearing or in the
alternative to continue the arbitration. Attached to the motion
was Mongolis' affidavit that she was unable to appear at the
scheduled arbitration hearing due to a previously scheduled
throat surgery on October 25, 1995. She did not produce an
affidavit from her physician in support of her motion. On
October 24, 1995, the motion was denied. The arbitration hearing
proceeded on October 26, 1995, and Mongolis did not personally
appear. Mongolis' attorney was present, however, and conducted
opening statement, cross-examination and closing argument.
Following the hearing, the arbitrators entered an award in favor
of Morales and against Mongolis in the amount of $15,000.
On November 8, 1995, Mongolis filed a notice of rejection of
the award pursuant to Supreme Court Rule 93. Rule 93 provides in
pertinent part:
"(a) Rejection of Award and Request for Trial.
Within 30 days after the filing of an award
with the clerk of the court, and upon payment
of the sum of $200 to the clerk of the court,
any party who was present at the arbitration
hearing, either in person or by counsel, may
file with the clerk a written 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."
145 Ill. 2d R. 93(a).

On December 5, 1995, Morales moved to bar Mongolis from rejecting
the award pursuant to Supreme Court Rule 90(g), on the grounds
that Mongolis failed to personally appear at the arbitration
hearing pursuant to Morales' June 29, 1995, Supreme Court Rule
237(b) notice, and Mongolis' repeated failure to properly
participate throughout the course of the proceeding. Mongolis
filed a response supported by a note from her physician stating
that she underwent throat surgery on October 25, 1995.
On January 22, 1996, following a reassignment of this matter
after Mongolis' motion for substitution of judges was granted,
the circuit court barred Mongolis from rejecting the arbitration
award and entered judgment on the award against Mongolis in the
amount of $15,000. On February 7, Mongolis filed a motion to
reconsider, which was denied on February 14, 1996. This appeal
followed. We affirm.
As an initial matter, we observe that the record consists
only of the common law record; there is no certified transcript
of proceedings or agreed statement of facts. Although it is the
duty of the appellant to provide an adequate record for review by
the appellate court, if the record provided is sufficient to
disclose any errors of which the appellant complains, and the
issues can be resolved on the record as it stands, the propriety
of the circuit court's order can be considered on appeal. Foutch
v. O'Bryant, 99 Ill. 2d 389, 391-92, 459 N.E.2d 958, 959 (1984);
Landau & Associates, P.D. v. Kennedy, 262 Ill. App. 3d 89, 92,
634 N.E.2d 373 (1994); Fiala v. Schulenberg, 256 Ill. App. 3d
922, 924, 628 N.E.2d 660, 662 (1993).
Mongolis first argues that she was never served with a Rule
237(b) notice to appear at the arbitration hearing. Because
Mongolis did not raise this argument before the trial court, she
has, therefore, waived its consideration on appeal. Williams v.
Dorsey, 273 Ill. App. 3d 893, 897, 652 N.E.2d 1286 (1995), citing
Schecter v. Blank, 254 Ill. App. 3d 560, 627 N.E.2d 106 (1993).
Absent waiver, we find that Mongolis was given adequate Rule
237(b) notice to appear at the arbitration hearing. Mongolis
argues that because the notice did not specify her appearance at
the arbitration hearing but, rather, at trial, she was not served
any notice pursuant to Rule 237(b) calling for her appearance at
the arbitration hearing. As this court stated in Williams,
however, in determining whether proper notice to appear was given
pursuant to Supreme Court Rule 237(b), we do not limit our
inquiry to the four corners of the motion. Rather, we examine
the circumstances of the case. Williams, 273 Ill. App. 3d 893,
652 N.E.2d 1286.
In the present case, the court entered an order transferring
the case to mandatory arbitration. Thereafter, Mongolis filed a
motion to be excused from appearing at the arbitration hearing or
to continue the arbitration, which the court denied. Thus,
Mongolis could not have reasonably construed the Rule 237(b)
notice as a notice to compel her appearance at trial. Mongolis
was aware she was required to appear at the arbitration hearing
on October 26, 1995. Consequently, Mongolis' Rule 237(b)
argument must fail.
Notwithstanding that fact, we note for future reference that
when a case is transferred to mandatory arbitration and a Rule
237(b) notice to appear at trial has been served, the better
practice is to issue a new Rule 237(b) notice to appear at the
arbitration hearing.
Mongolis next contends that barring rejection of the award
was an excessive sanction. The supreme court rules expressly
provide that a court has the discretion to enter an order
debarring a party from rejecting the arbitration award as a
proper sanction for failing to appear at the arbitration hearing.
Supreme Court Rule 90(g) provides:
"(g) Compelling Appearance of Witness at
Hearing.
The provisions of Rule 237, herein, shall be
equally applicable to arbitration hearings as they
are to trials. The presence of a party may be
waived by stipulation or excused by court order for
good cause shown not less than seven days prior to
the hearing. Remedies upon a party's failure to
comply with notice pursuant to Rule 237(b) may
include an order debarring that party from
rejecting the award." 145 Ill. 2d R. 90(g).

Supreme Court Rule 237(b) provides in relevant part:

"(b) Notice to Parties, et al.
The appearance at the trial of a party or a person
who at the time of trial is an officer, director,
or employee of a party may be required by serving
the party with a notice designating the person who
is required to appear. *** Upon a failure to comply
with the notice, the court may enter any order that
is just, including any order provided for in Rule
219(c) that may be appropriate." 134 Ill. 2d R.
237(b).

Illinois courts have consistently held that debarring a party
from rejecting an arbitration award is an appropriate sanction for
failing to appear at an arbitration hearing. Williams, 273 Ill.
App. 3d 893, 652 N.E.2d 1286; Moon v. Jones, 282 Ill. App. 3d 335,
668 N.E.2d 67 (1996). The standard of review in such cases is
whether the trial court abused its discretion in imposing the
sanction. Williams, 273 Ill. App. 3d 893, 652 N.E.2d 1286; Moon,
282 Ill. App. 3d 335, 668 N.E.2d 67. An abuse of discretion occurs
when a court rules arbitrarily or when its ruling "exceed[s] the
bounds of reason." Williams, 273 Ill. App. 3d at 901; Moon, 282
Ill. App. 3d 335, 668 N.E.2d 67.
In this instance, although Mongolis did not waive her right
to reject the award inasmuch as her counsel did appear on her
behalf and she properly filed her notice of rejection, the court
was not precluded from entering an order for sanctions debarring
her from rejecting the award pursuant to Supreme Court Rule 90(g)
(145 Ill. 2d R. 90(g)). Supreme Court Rule 93 (145 Ill. 2d R.
93(a)), makes clear that the filing of a notice of rejection by a
party who is or has been debarred from rejecting an award is
ineffective even if the party was present at the arbitration
hearing in person or by counsel.
Here, Mongolis failed to comply with a proper Rule 237(b)
notice to appear. Moreover, notwithstanding the fact that
Mongolis was barred from testifying at the hearing for her
failure to comply with discovery, Mongolis demonstrated a
deliberate and contumacious disregard of the court's authority by
not personally attending the arbitration hearing subsequent to
the October 24, 1995, order denying her motion to be excused from
attending the arbitration hearing or in the alternative to
continue the arbitration.
Mongolis argues the court erred in its denial of her motion
to be excused from the arbitration hearing or to continue the
arbitration and relies primarily upon a note from her physician.
The note dated November 7, 1995, 12 days after the arbitration
hearing, stated that Mongolis underwent throat surgery on October
25, 1995. The note from Mongolis' physician did not comport with
the requirements of evidentiary affidavits pursuant to Supreme
Court Rule 191(a) (134 Ill. 2d R. 191(a)). Mongolis failed to
include certified copies of her hospital records, and the
physician who signed the note did not indicate that if called to
testify, she would do so competently.
Prior to denying Mongolis' motion, the court considered the
evidence presented, including the form and contents of the
physician's note. There was no evidence presented to the court
indicating whether Mongolis' condition required immediate medical
treatment that would preclude her from attending the October 26,
1995, arbitration hearing. There was, however, evidence that
Mongolis had been aware of her medical condition for some time,
and that she had not required immediate surgery. In light of
these facts and the limited record on appeal, we cannot hold that
the circuit court, after considering all the evidence presented
thereon, abused its discretion in denying Mongolis' motion to be
excused from the arbitration hearing or to continue the
arbitration.
As this court noted in Williams, "[a] consistent theme
throughout the rules governing mandatory arbitration is the need
for parties and their counsel to take these proceedings
seriously; specifically, the concern is that no party make `a
mockery of this deliberate effort on behalf of the public, the
bar and judiciary to attempt to achieve an expeditious and less
costly resolution to private controversies' and to avoid allowing
the arbitration process to be reduced to merely `another hurdle
to be crossed in getting the case to trial.'" Williams, 273 Ill.
App. 3d at 900, quoting 145 Ill. 2d Rs. 91(a), (b), Committee
Comments, and citing 145 Ill. 2d Rs. 90(g), 93.
Mongolis further contends that the arbitration award was out
of proportion to the claimed injuries and damages and, therefore,
the circuit court abused its discretion by apparently not
considering a lesser sanction. Inasmuch as Mongolis failed to
appear for any of her scheduled depositions and because she has
failed to attach a transcript of the proceeding, it is impossible
for this court to gauge precisely how the arbitrators calculated
the amount awarded.
Nevertheless, the record is clear that a three-member panel
observed the witnesses and evaluated all the evidence presented
by the parties. Although Mongolis failed to personally appear at
the arbitration hearing, she was zealously represented by counsel
who conducted opening statement, cross-examination and closing
argument in Mongolis' defense.
After observing all witnesses and carefully considering all
the evidence presented by the parties, the arbitrators determined
that Mongolis' negligent operation of her automobile was the
proximate cause of damages to Morales' vehicle and injuries to
his neck and back. On this evidence, the arbitrators awarded
Morales $15,000. We therefore reject Mongolis' contention that
the arbitration award was out of proportion to the claimed
injuries and damages and find that the circuit court did not
abuse its discretion by entering judgment on the award.
Finally, Mongolis and her attorneys contend that the circuit
court erred in entering monetary sanctions in the amount of $173
against them for failure to comply with discovery. In support of
this contention, they argue that they made every effort to comply
with the discovery request and that Mongolis was physically
unable to attend her June 5, 1995, deposition due to a medical
emergency concerning her pregnancy. They further argue that the
monetary discovery sanctions were entered strictly for the June
5, 1995, deposition and, therefore, the monetary sanctions could
only be affirmed if Mongolis' and her attorney's conduct with
respect to the June 5, 1995, deposition was sanctionable. For
the following reasons, we disagree.
Illinois Supreme Court Rule 219(c) authorizes the circuit
court to enter sanctions against a party or a party's attorney
for failure to comply with discovery. Rule 219(c) provides in
relevant part:
"If a party, or any person at the instance of
or in collusion with a party, unreasonably
fails to comply with any provision of part E
of article II of the rules of this court
(Discovery, Requests for Admission, and
Pretrial Procedure) or fails to comply with
any order entered under these rules, the
court, on motion, may enter, in addition to
remedies elsewhere specifically provided, such
orders as are just, ***.
***
[t]he court, upon motion or upon its own
initiative, may impose upon the offending
party or his or her attorney or both, an
appropriate sanction, which may include an
order to pay to the other party or parties the
amount of reasonable expenses incurred as a
result of the misconduct, including a
reasonable attorney fee, ***." 134 Ill. 2d R.
219(c).

The decision to impose sanctions upon a party or the party's
attorney will not be disturbed absent a clear abuse of
discretion. Sander v. Dow Chemical Co., 166 Ill. 2d 48, 651 N.E.2d 1071 (1995).
Although the circuit court entered monetary discovery
sanctions against Mongolis and her attorneys for only $173, the
deposition costs of $65 and fees of $108 incurred on June 5,
1995, the court imposed the sanctions on the grounds contained in
Morales' motion to compel discovery and for sanctions, which set
forth numerous occasions prior to June 5, 1995, where Mongolis
failed to attend her scheduled discovery deposition. The record
reflects that there were several occasions where Mongolis was
properly notified of the scheduled deposition dates and failed to
appear. The record further reflects that there were also
occasions where Mongolis did not receive timely notice of her
scheduled deposition date due to conduct of her attorneys.
Considering the foregoing, it cannot be held that the circuit
court abused its discretion in imposing monetary sanctions in the
amount of $173 against Mongolis and her attorneys.
For the aforementioned reasons, we cannot conclude that the
circuit court abused its discretion in debarring Mongolis from
rejecting the arbitrators award. Accordingly, the July 5, 1995,
October 24, 1995, January 22, 1996 and February 14, 1996, orders
and judgment of the circuit court of Cook County are affirmed.
Affirmed.

HARTMAN and HOURIHANE, JJ., concur.