Guider v. McIntosh
Annotate this Case
SECOND DIVISION
December 23, 1997
No. 1-96-3163
AMY GUIDER, PATRICIA GUIDER and ) Appeal from the
ANZOLA OLIPHANT, ) Circuit Court of
) Cook County.
Plaintiffs-Appellees, )
)
LOLA McINTOSH and PRECIOUS McINTOSH, ) Honorable
) Victoria A. Stewart,
Defendants-Appellants. ) Judge Presiding.
PRESIDING JUSTICE McNULTY delivered the opinion of the court:
Plaintiffs Amy Guider, Patricia Guider and Anzola Oliphant
brought suit against defendants Lola McIntosh and Precious
McIntosh, to recover damages for injuries plaintiffs sustained in
an automobile collision with defendants. Defendants appeal from
trial court orders sending their case to a second arbitration and
barring them from rejecting the arbitrator's award from the second
hearing. We reverse and remand.
The first mandatory arbitration of this case was held January
19, 1996. The arbitrator entered an award in favor of plaintiffs
in the amount of $2,384 to Amy Guider, $2,452 to Patricia Guider
and $2,860 to Anzola Oliphant. Defendants filed their rejection of
the award of January 30, 1996.
On February 8, 1996, defendants filed a motion to vacate the
arbitration award, enter judgment in favor of defendants, and
obtain a refund of their rejection fee. The basis of the
defendants' motion was that the arbitrators violated a trial court
order that barred plaintiffs from introducing evidence at the
arbitration hearing due to plaintiffs' failure to appear for their
depositions. On February 20, 1996, the trial court entered an
order striking the evidence plaintiffs introduced at the
arbitration hearing, vacating the arbitration award and entering
judgment in favor of defendants. The court also ordered plaintiffs
to refund defendants $200 rejection fee.
On March 11, 1996, plaintiffs filed a motion asking the trial
court to reconsider the court's order of February 20, 1996, arguing
that their failure to appear for their depositions was due to
defendants' lack of diligence. Plaintiffs' motion asked for the
reinstatement of the arbitration award of January 19, 1996. On
April 11, 1996, the court vacated the judgment in favor of
defendants and set the case for a second arbitration.
On July 23, 1996, the second mandatory arbitration was held.
Defendants were not present at the arbitration, but their counsel
was present. The arbitrators entered an award in favor plaintiffs
in the amounts of $3,000 to Amy Guider, $3,300 to Patricia Guider
and $4,000 to Anzola Oliphant.
On July 30, 1996, plaintiffs filed a motion to bar defendants
from rejecting the arbitration award of July 23, 1996, on the basis
that defendants were not present at the second arbitration hearing.
On August 7, 1996, the trial court granted plaintiffs' motion and
entered judgment in favor of plaintiffs.
Defendants claim on appeal that the trial court exceeded its
authority when it ordered a second arbitration hearing and erred in
barring defendants from rejecting the second arbitration award.
The issue of whether a trial court has authority to order a
second arbitration hearing was recently addressed by the court in
Akpan v. Sharma, No. 1-96-2199 (October 31, 1997). In Akpan, both
parties appeared at the first arbitration hearing, but, pursuant to
a court order, plaintiff was not permitted to testify at the
hearing. The arbitrators, nonetheless, entered an award in favor
of plaintiff. Defendant rejected the award and the case was set
for trial. Plaintiff then sought to have the order barring him
from testifying at the arbitration hearing reconsidered. The trial
court granted plaintiff's motion to reconsider and scheduled a
second arbitration in which plaintiff was permitted to testify.
Defendant did not attend the second arbitration hearing, but his
attorney did appear. At the conclusion of the second arbitration
hearing, the arbitrators entered an award in favor of plaintiff
that was larger than the first arbitration award. Plaintiff moved
for judgment in his favor in the amount of the second arbitration
award, claiming that defendant should be barred from rejecting the
award since he did not appear at the second arbitration hearing.
The trial court granted plaintiff's motion and entered judgment in
favor of plaintiff in the amount of the second award.
The defendant in Akpan argued on appeal that the trial court
was not authorized to order a second arbitration hearing. The
court noted:
"The Illinois rules *** establish one procedure for
challenging awards entered in mandatory arbitration
proceedings: a party must file a notice of rejection of the
award and request a trial. [145 Ill. 2d 93(a).] As a limited
exception, parties who fail to appear at an arbitration
hearing may file a petition to vacate the judgment pursuant to
sections 2-1301 and 2-1401 of the Code of Civil Procedure (735
ILCS 5/2-1301, 1401 (West 1994)). In such cases, the circuit
court 'may order the matter for rehearing in arbitration.' 145
Ill. 2d R. 91(a). The rules do not, however, authorize
parties to file motions for reconsideration of the award, or
to set aside or vacate the award for other reasons. Such
procedures would delay resolution of the case, which runs
counter to the stated intent of the drafters of the mandatory
arbitration rules, as well as the effect of implementing an
early, economical and fair resolution of such a dispute."
Akpan, slip op. at 6.
The Akpan court thus concluded that the trial court, in ordering
a second arbitration hearing, rather than allowing the case to
proceed to trial after defendant rejected the first arbitration
award, circumvented the intent and anticipated effect of the
arbitration procedures. The court thus held that the second
hearing should not have taken place and reversed the second award
entered in plaintiff's favor and remanded for further proceedings.
See also Lough v. Spring, 383 Pa. Super. 85, 556 A.2d 441
(1989)(proper procedure for appealing a compulsory arbitration
award is to request a trial, not to request a second arbitration
hearing).
We find Apkan persuasive and likewise find that the second
arbitration hearing in the instant case was improperly ordered. On
January 30, 1996, defendants filed a rejection of the first
arbitration award. Then, on February 9, 1996, defendants filed a
motion to vacate the arbitration award and enter judgment in
defendants' favor. Defendants claimed that a vacatur of the award
was warranted since the arbitrators violated a court order that
barred plaintiffs from introducing evidence at the arbitration
hearing. On February 20, 1996, the trial court entered an order
striking the evidence plaintiffs introduced at the arbitration
hearing, vacating the arbitration award and entering judgment in
favor of defendants. On March 11, 1996, plaintiffs filed a motion
asking the court to reconsider the court's order of February 20,
1996, and to reinstate the arbitration award on January 19, 1996.
On April 11, 1996, the trial court vacated the judgment in favor on
defendants and ordered a second arbitration hearing.
Supreme Court Rule 93(a)(145 Ill. 2d R. 93(a)), provides that
any party who was present at the arbitration hearing may file a
rejection of the arbitration award and request to proceed to trial.
The court only has discretion to order a second arbitration hearing
in one circumstance, when one party did not attend the arbitration
hearing and has filed a motion to vacate the judgment entered on
the arbitration award. 145 Ill. 2d R. 91(a).
The defendants here filed a timely rejection of the first
arbitration award. However, the defendants also filed a motion to
vacate that award. The trial court, however, had no authority to
vacate the arbitration award since plaintiffs and defendants all
attended the first arbitration hearing. Thus, the February 20,
1996, trial court order vacating the first arbitration award and
entering judgment in favor of defendants was void, as was the trial
court's April 11, 1996, order vacating the judgment that had been
entered in favor of defendants and ordering a new arbitration
hearing. With those orders being void, we are left with
defendants' timely rejection of the first arbitration award. In
light of defendants' rejection of the first arbitration award, the
proper procedure is for this case to proceed to trial.
Defendants claim that Moon v. Jones, 282 Ill. App. 3d 335, 668 N.E.2d 335 (1996), stands for the proposition that the trial court
has the discretion to order a second arbitration hearing.
Defendants, however, misinterpret Moon. First, it should be noted
that the facts in Moon are different from those presented here. In
that case neither plaintiff nor her counsel appeared at the first
arbitration hearing. An arbitration award was entered in favor of
defendant. Plaintiff filed a motion to vacate the judgment
pursuant to Supreme Court Rule 91(a)(134 Ill. 2d R. 91(a)). Under
those circumstances, the trial court had the authority to order a
second arbitration hearing.
In the instant case, both parties were present at the first
arbitration hearing. Thus, the trial court did not have the
discretion under the circumstances here to order a second
arbitration hearing.
Furthermore, the issue in Moon was not whether the court
properly ordered a second arbitration hearing, but whether the
trial court exceeded its authority in barring plaintiff from
rejecting future arbitration awards, regardless of whether
plaintiff attended those hearings or participated in good faith.
The court in Moon determined that once the trial court gives the
litigant another chance by ordering a new arbitration hearing, it
may not bar that litigant from rejecting the future award. That
holding clearly is not relevant here.
We therefore conclude that the trial court in the instant case
had no authority to order a second arbitration hearing.
Accordingly, we reverse the judgment entered on the arbitrator's
award from that second hearing and we remand for further
proceedings consistent with this opinion.
Reversed and remanded.
RAKOWSKI and TULLY, JJ., concur.
December 23, 1997
No. 1-96-3163
AMY GUIDER, PATRICIA GUIDER and ) Appeal from the
ANZOLA OLIPHANT, ) Circuit Court of
) Cook County.
Plaintiffs-Appellees, )
)
LOLA McINTOSH and PRECIOUS McINTOSH, ) Honorable
) Victoria A. Stewart,
Defendants-Appellants. ) Judge Presiding.
PRESIDING JUSTICE McNULTY delivered the opinion of the court:
Plaintiffs Amy Guider, Patricia Guider and Anzola Oliphant
brought suit against defendants Lola McIntosh and Precious
McIntosh, to recover damages for injuries plaintiffs sustained in
an automobile collision with defendants. Defendants appeal from
trial court orders sending their case to a second arbitration and
barring them from rejecting the arbitrator's award from the second
hearing. We reverse and remand.
The first mandatory arbitration of this case was held January
19, 1996. The arbitrator entered an award in favor of plaintiffs
in the amount of $2,384 to Amy Guider, $2,452 to Patricia Guider
and $2,860 to Anzola Oliphant. Defendants filed their rejection of
the award of January 30, 1996.
On February 8, 1996, defendants filed a motion to vacate the
arbitration award, enter judgment in favor of defendants, and
obtain a refund of their rejection fee. The basis of the
defendants' motion was that the arbitrators violated a trial court
order that barred plaintiffs from introducing evidence at the
arbitration hearing due to plaintiffs' failure to appear for their
depositions. On February 20, 1996, the trial court entered an
order striking the evidence plaintiffs introduced at the
arbitration hearing, vacating the arbitration award and entering
judgment in favor of defendants. The court also ordered plaintiffs
to refund defendants $200 rejection fee.
On March 11, 1996, plaintiffs filed a motion asking the trial
court to reconsider the court's order of February 20, 1996, arguing
that their failure to appear for their depositions was due to
defendants' lack of diligence. Plaintiffs' motion asked for the
reinstatement of the arbitration award of January 19, 1996. On
April 11, 1996, the court vacated the judgment in favor of
defendants and set the case for a second arbitration.
On July 23, 1996, the second mandatory arbitration was held.
Defendants were not present at the arbitration, but their counsel
was present. The arbitrators entered an award in favor plaintiffs
in the amounts of $3,000 to Amy Guider, $3,300 to Patricia Guider
and $4,000 to Anzola Oliphant.
On July 30, 1996, plaintiffs filed a motion to bar defendants
from rejecting the arbitration award of July 23, 1996, on the basis
that defendants were not present at the second arbitration hearing.
On August 7, 1996, the trial court granted plaintiffs' motion and
entered judgment in favor of plaintiffs.
Defendants claim on appeal that the trial court exceeded its
authority when it ordered a second arbitration hearing and erred in
barring defendants from rejecting the second arbitration award.
The issue of whether a trial court has authority to order a
second arbitration hearing was recently addressed by the court in
Akpan v. Sharma, No. 1-96-2199 (October 31, 1997). In Akpan, both
parties appeared at the first arbitration hearing, but, pursuant to
a court order, plaintiff was not permitted to testify at the
hearing. The arbitrators, nonetheless, entered an award in favor
of plaintiff. Defendant rejected the award and the case was set
for trial. Plaintiff then sought to have the order barring him
from testifying at the arbitration hearing reconsidered. The trial
court granted plaintiff's motion to reconsider and scheduled a
second arbitration in which plaintiff was permitted to testify.
Defendant did not attend the second arbitration hearing, but his
attorney did appear. At the conclusion of the second arbitration
hearing, the arbitrators entered an award in favor of plaintiff
that was larger than the first arbitration award. Plaintiff moved
for judgment in his favor in the amount of the second arbitration
award, claiming that defendant should be barred from rejecting the
award since he did not appear at the second arbitration hearing.
The trial court granted plaintiff's motion and entered judgment in
favor of plaintiff in the amount of the second award.
The defendant in Akpan argued on appeal that the trial court
was not authorized to order a second arbitration hearing. The
court noted:
"The Illinois rules *** establish one procedure for
challenging awards entered in mandatory arbitration
proceedings: a party must file a notice of rejection of the
award and request a trial. [145 Ill. 2d 93(a).] As a limited
exception, parties who fail to appear at an arbitration
hearing may file a petition to vacate the judgment pursuant to
sections 2-1301 and 2-1401 of the Code of Civil Procedure (735
ILCS 5/2-1301, 1401 (West 1994)). In such cases, the circuit
court 'may order the matter for rehearing in arbitration.' 145
Ill. 2d R. 91(a). The rules do not, however, authorize
parties to file motions for reconsideration of the award, or
to set aside or vacate the award for other reasons. Such
procedures would delay resolution of the case, which runs
counter to the stated intent of the drafters of the mandatory
arbitration rules, as well as the effect of implementing an
early, economical and fair resolution of such a dispute."
Akpan, slip op. at 6.
The Akpan court thus concluded that the trial court, in ordering
a second arbitration hearing, rather than allowing the case to
proceed to trial after defendant rejected the first arbitration
award, circumvented the intent and anticipated effect of the
arbitration procedures. The court thus held that the second
hearing should not have taken place and reversed the second award
entered in plaintiff's favor and remanded for further proceedings.
See also Lough v. Spring, 383 Pa. Super. 85, 556 A.2d 441
(1989)(proper procedure for appealing a compulsory arbitration
award is to request a trial, not to request a second arbitration
hearing).
We find Apkan persuasive and likewise find that the second
arbitration hearing in the instant case was improperly ordered. On
January 30, 1996, defendants filed a rejection of the first
arbitration award. Then, on February 9, 1996, defendants filed a
motion to vacate the arbitration award and enter judgment in
defendants' favor. Defendants claimed that a vacatur of the award
was warranted since the arbitrators violated a court order that
barred plaintiffs from introducing evidence at the arbitration
hearing. On February 20, 1996, the trial court entered an order
striking the evidence plaintiffs introduced at the arbitration
hearing, vacating the arbitration award and entering judgment in
favor of defendants. On March 11, 1996, plaintiffs filed a motion
asking the court to reconsider the court's order of February 20,
1996, and to reinstate the arbitration award on January 19, 1996.
On April 11, 1996, the trial court vacated the judgment in favor on
defendants and ordered a second arbitration hearing.
Supreme Court Rule 93(a)(145 Ill. 2d R. 93(a)), provides that
any party who was present at the arbitration hearing may file a
rejection of the arbitration award and request to proceed to trial.
The court only has discretion to order a second arbitration hearing
in one circumstance, when one party did not attend the arbitration
hearing and has filed a motion to vacate the judgment entered on
the arbitration award. 145 Ill. 2d R. 91(a).
The defendants here filed a timely rejection of the first
arbitration award. However, the defendants also filed a motion to
vacate that award. The trial court, however, had no authority to
vacate the arbitration award since plaintiffs and defendants all
attended the first arbitration hearing. Thus, the February 20,
1996, trial court order vacating the first arbitration award and
entering judgment in favor of defendants was void, as was the trial
court's April 11, 1996, order vacating the judgment that had been
entered in favor of defendants and ordering a new arbitration
hearing. With those orders being void, we are left with
defendants' timely rejection of the first arbitration award. In
light of defendants' rejection of the first arbitration award, the
proper procedure is for this case to proceed to trial.
Defendants claim that Moon v. Jones, 282 Ill. App. 3d 335, 668 N.E.2d 335 (1996), stands for the proposition that the trial court
has the discretion to order a second arbitration hearing.
Defendants, however, misinterpret Moon. First, it should be noted
that the facts in Moon are different from those presented here. In
that case neither plaintiff nor her counsel appeared at the first
arbitration hearing. An arbitration award was entered in favor of
defendant. Plaintiff filed a motion to vacate the judgment
pursuant to Supreme Court Rule 91(a)(134 Ill. 2d R. 91(a)). Under
those circumstances, the trial court had the authority to order a
second arbitration hearing.
In the instant case, both parties were present at the first
arbitration hearing. Thus, the trial court did not have the
discretion under the circumstances here to order a second
arbitration hearing.
Furthermore, the issue in Moon was not whether the court
properly ordered a second arbitration hearing, but whether the
trial court exceeded its authority in barring plaintiff from
rejecting future arbitration awards, regardless of whether
plaintiff attended those hearings or participated in good faith.
The court in Moon determined that once the trial court gives the
litigant another chance by ordering a new arbitration hearing, it
may not bar that litigant from rejecting the future award. That
holding clearly is not relevant here.
We therefore conclude that the trial court in the instant case
had no authority to order a second arbitration hearing.
Accordingly, we reverse the judgment entered on the arbitrator's
award from that second hearing and we remand for further
proceedings consistent with this opinion.
Reversed and remanded.
RAKOWSKI and TULLY, JJ., concur.
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