Bachmann v. Kent

SIXTH DIVISION
December 12, 1997


No. 1-96-0369

JUDITH BACHMANN,

Plaintiff-Appellee,

v.

WAUNITA KENT,

Defendant-Appellant.)
)
)
)
)
)
)
)
)Appeal from the
Circuit Court of
Cook County

94 M6 6531

The Honorable
Edwin J. Richardson,
Judge Presiding.

JUSTICE QUINN delivered the opinion of the court:
This case is brought on appeal from a January 8, 1996, order
of the circuit court striking defendant's rejection of an
arbitration award on the ground that it was not signed by an
attorney, denying defense counsel's request to sign the notice of
rejection, and entering judgment on the arbitration award in favor
of plaintiff. Defendant contends that (1) the trial court erred in
debarring her rejection of the arbitration award; (2) the trial
court erred in denying defense counsel's request to sign the notice
of rejection; (3) the court-imposed sanction was excessive; and (4)
the sanction violated the Illinois Constitution and the enabling
act. 735 ILCS 5/2-1004A (West 1994).
On December 29, 1994, plaintiff, Judith Bachman, filed a
complaint against defendant, Waunita L. Kent, and a jury demand
alleging that she was injured in a traffic accident as a result of
defendant's negligence. Plaintiff filed and served a deposition
notice, but defendant failed to appear. As a result, the trial
court then barred defendant from testifying at the arbitration
hearing as a sanction, and also struck her affirmative defenses as
a discovery sanction.
On October 25, 1995, the case was arbitrated, and an award was
entered in favor of plaintiff in the amount of $12,000. Defendant
failed to attend the arbitration hearing, despite plaintiff's
Request to Produce. Defendant's attorney from Parillo, Weiss &
O'Halloran was present. On November 6, 1995, defendant filed both
her notice of rejection of the arbitration award and a request for
a jury trial. The notice of rejection was not signed by defendant,
nor her attorney of record, but rather by some other individual.
The signature on the notice did not indicate whether this
individual was an attorney. The same signature appeared as a
certification on defendant's appearance and jury demand, although
on that document it was followed by illegible initials without any
further indication of the identity of the individual who signed.
Defendant's appearance and answer were both signed in the firm's
name, and not in the name of an individual attorney.
On November 16, 1995, plaintiff filed a motion to strike
defendant's rejection of the arbitration award on the ground that
defendant did not appear in person at the arbitration hearing to
testify in plaintiff's case. On December 6, 1995, plaintiff filed
another motion to strike defendant's rejection of the arbitration
award on the additional ground that the notice of rejection was
signed by a non-attorney. On January 8, 1996, the court entered an
order striking defendant's rejection of the arbitration award on
the ground that it was not signed by an attorney. The trial court
denied defense counsel's request to sign the notice of rejection,
and entered judgment on the arbitration award in the amount of
$12,000. Defendant appeals from this order.
Before addressing the merits of this appeal, we note that the
record consists only of the common law record and one two-page
supplemental record consisting only of plaintiff's motion to compel
defendant's deposition. While we may refer to the common law
record in addressing the issues defendant raises, any doubts raised
by insufficiencies in the record must be resolved against
defendant-appellant, whose obligation it was to present this court
with a sufficiently complete record of the proceedings. Williams
v. Dorsey, 273 Ill. App. 3d 893, 896, 652 N.E.2d 1286 (1995).
Also, both defendant and plaintiff raise several arguments
which are unsupported by citation to the record or to pertinent
authority. Therefore, these arguments are waived. People v.
Pecor, 153 Ill. 2d 109, 606 N.E.2d 1127 (1992).
First, defendant contends that the trial court erred in
striking her rejection of the arbitration award. We disagree. The
trial court properly struck defendant's rejection of the
arbitration award where defendant failed to appear at the
arbitration hearing, and the notice of rejection was signed in
violation of Supreme Court Rule 137. 134 Ill. 2d R. 137. Absent
an abuse of discretion, the court's imposition of a sanction will
not be disturbed on review. State Farm Insurance Co. v. Gebbie,
288 Ill. App. 3d 640, 644, 681 N.E.2d 595 (1997).
Under Supreme Court Rule 237, the appearance of a party may be
required by serving the party with notice that designates the
person who is required to appear. 166 Ill. 2d R. 237(b). Supreme
Court Rule 90(g) states the following:
"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).
The attendance of counsel at an arbitration hearing preserves
the right to reject an arbitration award. Dorsey, 273 Ill. App. 3d
at 900. However, the attendance of counsel does not preclude the
trial court from entering an order debarring a party from rejecting
the award as a sanction. Knight v. Guzman, 291 Ill. App. 3d 378,
380, 684 N.E.2d 152 (1997); Gebbie, 288 Ill. App. 3d at 643. Under
Supreme Court Rule 90(g), it is within the trial court's authority
to bar a party from rejecting an award as a sanction for failing to
comply with a notice to appear under Rule 237(b). 145 Ill. 2d R.
90(g); 166 Ill. 2d R. 237(b); Gebbie, 288 Ill. App. 3d at 643.
When a party is debarred from rejecting an arbitration award, the
filing of a notice of rejection is ineffective. 145 Ill. 2d R.
93(a).
In the instant case, plaintiff served defendant with a Rule
237 notice to appear at the arbitration hearing, but defendant
failed to appear. There is no indication in the motions and
answers in the record that defendant moved to have her presence
waived or excused. As we do not have the report of proceedings of
the arbitration hearing, we will presume that defendant's failure
to appear was unexcused. Thus, the trial court's order debarring
defendant's rejection of the arbitration award was not an abuse of
discretion.
Defendant argues that plaintiff's Rule 237 notice did not
apply to the arbitration hearing because it was titled "RULE 237
NOTICE TO PRODUCE AT TRIAL," and did not specifically refer to
arbitration (emphasis added). However, this same argument has been
rejected in Dorsey, a case involving the same law firm here,
Parillo, Weiss & O'Halloran. Dorsey, 273 Ill. App. 3d at 897. The
law firm representing defendant in this case failed to cite this
case in its opening brief and failed to respond to plaintiff's
citation of the case in defendant's reply brief, despite its
affirmative duty under the Rules of Professional Conduct to cite to
this court such adverse precedent. See 134 Ill. 2d R. 3.3(a)(3).
Dorsey is dispositive of this issue, and so we hold that the Rule
237 notice filed by plaintiff applied to the arbitration hearing.
Defendant also contends that she could not have reasonably
interpreted the notice to apply to the arbitration hearing, because
the Rule 237 notice was filed six months before the Sixth Municipal
District even started an arbitration program. This argument also
is unavailing. Once the case was transferred to arbitration, and
no trial was scheduled, the notice to appear applied to
arbitration. See Dorsey, 273 Ill. App. 3d at 897.
Defendant further argues that plaintiff was not prejudiced by
her failure to appear because she was barred from testifying as a
sanction for her discovery violation pursuant to the court's order.
This issue also has been recently addressed, in yet another case
involving the same law firm and the same attorney on appeal. In
Gebbie, 288 Ill. App. 3d at 643, the court rejected the defendant's
argument that his failure to appear personally at the arbitration
hearing was excused because the court had barred him from
presenting evidence at the arbitration. The court held that
defendant was still obligated to appear because, although the lower
court barred defendant from presenting his case, it did not bar the
plaintiff from calling the defendant as an adverse party. Gebbie,
288 Ill. App. 3d at 643-644. The court held, "[d]efendant's
willful violation of discovery cannot excuse his failure to appear
personally at the arbitration hearing." Gebbie, 288 Ill. App. 3d
at 643.
Similarly, in the instant case, the fact that defendant was
barred from testifying in her own behalf at the arbitration hearing
as a result of her discovery violation did not excuse her from
appearing at the hearing. Defendant mistakenly interprets the
trial court's order as barring her from testifying at all.
However, as in Gebbie, plaintiff was not barred from calling
defendant as an adverse witness.
Defendant also mistakenly argues that plaintiff was not
prejudiced by defendant's failure to appear because the only issues
remaining in the arbitration, proximate causation and damages, were
peculiarly within plaintiff's knowledge. On the contrary,
defendant could have testified as an adverse witness, at the very
least, on the issue of proximate cause.
Thus, because defendant did not appear in person at the
arbitration hearing, the circuit court had authority under Supreme
Court Rule 90(g), 145 Ill. 2d R. 90(g), based on defendant's
violation of Supreme Court Rule 237, 166 Ill. 2d R. 237, to debar
defendant from rejecting the arbitration award. Therefore, the
trial court's order debarring the rejection of the arbitration
award was not an abuse of discretion.
The trial court also properly struck defendant's rejection of
the arbitration award on the additional ground that the notice of
rejection was signed in violation of Supreme Court Rule 137. 134
Ill. 2d R. 137.
Under Supreme Court Rule 93(a), a notice of rejection of an
arbitration award must be filed by a party who was present at the
arbitration hearing, "either in person or by counsel." 145 Ill. 2d
R. 93(a). The phrase "either in person or by counsel" refers
merely to the party's presence at the hearing, and not to who must
file or sign the notice of rejection. Knight, 291 Ill. App. 3d at
382.
Supreme Court Rule 137 governs the signing of pleadings,
motions and other papers, which includes notices of rejection of
arbitration awards. Supreme Court Rule 137 states:
"Every pleading, motion and other paper of a party
represented by an attorney shall be signed by at least
one attorney of record in his individual name ***." 134
Ill. 2d R. 137.
Supreme Court Rule 137 further provides:
"If a pleading, motion, or other paper is signed in
violation of this rule, the court, upon motion or upon
its own initiative, may impose upon the person who signed
it, a represented party, or both, an appropriate sanction
***." 134 Ill. 2d R. 137.
The purpose of Supreme Court Rule 137 is to punish litigants
who plead frivolous or false matters or bring suit without any
basis in law. Hernandez v. Williams, 258 Ill. App. 3d 318, 320,
632 N.E.2d 49 (1994). The rule is penal in nature and must be
strictly construed. In re Estate of J.M., 287 Ill. App. 3d 110,
116, 678 N.E.2d 15 (1997).
The granting of sanctions under Supreme Court Rule 137 is
entrusted to the sound discretion of the trial court, and will not
be disturbed absent an abuse of that discretion. Fremarek v. John
Hancock Mutual Life Insurance Co., 272 Ill. App. 3d 1067, 1074, 651 N.E.2d 601 (1995). A trial court exceeds its discretion only where
no reasonable person would take the view adopted by it. If
reasonable people would differ as to the propriety of the court's
action, the reviewing court cannot say that the trial court abused
its discretion. Fremarek, 272 Ill. App. 3d at 1074.
Here, the trial court did not abuse its discretion in striking
defendant's notice of rejection where the notice was signed by a
non-attorney in violation of Supreme Court Rule 137. 134 Ill. 2d
R. 137. In defendant's response to plaintiff's motion to debar
rejection of the arbitration award, defendant admitted that the
individual who signed the notice of rejection was actually the
secretary of an attorney at the law firm retained by defendant.
It appears that the same individual also may have signed the
certification on the appearance and jury demand, as well as the
answer to the complaint, as signified by the initials following the
signature. In addition, defendant's appearance and jury demand was
signed in the law firm's name, and not by an individual attorney.
The signatures on these documents were not, however, argued as
additional grounds for striking the defendant's rejection of the
arbitration award.
Supreme Court Rule 137 requires papers to be signed by "at
least one attorney of record in his individual name" if the party
is represented by an attorney. 134 Ill. 2d R. 137. Here,
defendant was represented by a law firm, and so an attorney of
record should have signed the notice of rejection. Also, Supreme
Court Rule 95 requires attorney certification as part of the proper
form of the notice of rejection. 134 Ill. 2d R. 95.
This case presents the issue of whether the signature of a
non-attorney employee of a law firm is sufficient as the signature
of an "attorney of record" under Supreme Court Rule 137. We hold
that it is not.
The signing of a paper by a law firm, rather than an
individual attorney, constitutes a violation of Supreme Court Rule
137. Hernandez, 258 Ill. App. 3d at 320-21. In Hernandez, the
court upheld the imposition of sanctions where the jury demand
filed by the defendant's retained law firm was signed only in the
firm's name. Hernandez, 258 Ill. App. 3d at 320-21.
However, Supreme Court Rule 137's requirement that an
"attorney of record" sign all pleadings, motions and papers is not
interpreted to mean that only the actual attorney of record at the
trial or hearing can sign. The most recent interpretation of who
may sign a notice of rejection of an arbitration award is found in
Knight, 291 Ill. App. 3d at 382-383. The court in Knight held that
an associate of the firm retained by the defendant could sign and
file the notice of rejection of an arbitration award, even though
that associate was not present at the arbitration hearing. Knight,
291 Ill. App. 3d at 382-383. Thus, under Supreme Court Rule 137
"attorney of record" is interpreted somewhat broadly to include
other associates at the same firm retained by a party.
On the other hand, Supreme Court Rule 137 has not been
interpreted so broadly as to allow anyone, even non-attorneys, to
sign pleadings, motions and papers. We reject defendant's argument
that the signature on the notice of rejection of the arbitration
award was valid because it was adopted by Kent's attorney. We have
found no Illinois case law holding that a non-attorney's signature
is sufficient to satisfy Supreme Court Rule 137's attorney
signature requirement. As such, we turn to federal case law
interpreting Federal Rule of Civil Procedure 11. Illinois courts
may seek guidance in Federal courts' interpretation of Federal Rule
of Civil Procedure 11 in interpreting the imposition of sanctions
under Illinois Supreme Court Rule 137, as the provisions are
virtually identical. Zander v. Whitney, 242 Ill. App. 3d 523, 535,
610 N.E.2d 779 (1993).
The United States Supreme Court has held that only the
signature of at least one attorney of record in his individual name
satisfies the signing requirement on papers. Pavelic & LeFlore v.
Marvel Entertainment, 493 U.S. 120, 107 L. Ed. 2d 438, 110 S. Ct. 456 (1989). The Supreme Court specifically rejected an appeal to
the principles of agency. The Supreme Court stated the following:
"We are not dealing here, however, with
common-law liability, but with a Rule that
strikingly departs from normal common-law
assumptions such as that of delegability. The
signing attorney cannot leave it to some trusted
subordinate, or to one of his partners, to satisfy
himself that the filed paper is factually and
legally responsible; by signing he represents not
merely the fact that it is so, but also the fact
that he personally has applied his own judgment."
Pavelic, 493 U.S. at 125, 107 L. Ed. 2d at 444, 110 S. Ct. at 459.
Similarly, in the instant case, defendant's attorney could not
have delegated to her secretary her authority in signing the notice
of rejection. Although Knight held that an associate at the same
firm could sign a notice of rejection, as an attorney of record, a
non-attorney simply cannot fulfill the signing requirement of
Supreme Court Rule 137.
Although Hernandez noted that a violation of the signing
requirement of Supreme Court Rule 137 might be said to be de
minimis, Hernandez, 258 Ill. App. 3d at 321, it is nonetheless a
violation, and we decline to pervert the plain language of Supreme
Court Rule 137 to hold that an "attorney of record" can include
non-attorneys. Appellate counsel for defendant concedes that the
signature is a violation of Supreme Court Rule 137, although a
"technical" one. Thus, we find that the signature of a non-
attorney on the notice of rejection consitutes a violation of
Supreme Court Rule 137, and was an additional basis for striking
the notice of rejection.
We reject defendant's argument that the only grounds for
barring a rejection of an arbitration award are Supreme Court Rules
90(g) (failure to comply with notice to appear at a hearing under
Supreme Court Rule 237) and 91(b) (failure to participate in an
arbitration hearing in good faith and in a meaningful manner). The
language of Supreme Court Rule 137 is broad in allowing a court
discretion in imposing the appropriate sanctions.
We turn to the second issue of whether the trial court
properly denied defense counsel's request to sign the notice of
rejection after the improper signature was called to her attention.
The relevant provision in Supreme Court Rule 137 provides:
"*** If a pleading, motion, or other paper is not
signed, it shall be stricken unless it is signed promptly
after the omission is called to the attention of the
pleader or movant. If a pleading, motion, or other paper
is signed in violation of this rule, the court, upon
motion or upon its own initiative, may impose upon the
person who signed it, a represented party, or both, an
appropriate sanction ***." 134 Ill. 2d R. 137.
(Emphasis added.)
A careful reading of Supreme Court Rule 137 shows that the
rule addresses two distinct factual situations: (1) where a
document filed with the court is not signed at all; and (2) where
a document is signed in violation of the rule. According to the
plain language of the rule, a court should allow an attorney to
sign a document only where the document is not signed at all.
Where a document is signed in violation of the rule, a court is
under no obligation to allow an attorney to sign the document.
Rather, the rule provides for appropriate sanctions.
Here, the notice of rejection was not unsigned, rather, it was
signed in violation of the rule. Thus, the court's refusal to
allow defense counsel to sign the notice was not an abuse of
discretion.
Defendant's cited cases are inapposite, as they do not involve
signed documents. See State of Arizona ex Rel Painter v. Painter,
238 Ill. App. 3d 796, 606 N.E.2d 298 (1992); Modern Mailing
Systems, Inc. v. McDaniels, 191 Ill. App. 3d 347, 547 N.E.2d 762
(1989).
Defendant attempts to characterize the sanction here as a
second sanction for her previous discovery violation under Supreme
Court Rule 219(c) for which the court had already imposed a
sanction. We disagree. There is no indication that the court
struck the notice of rejection for this purpose.
Defendant also argues that she cannot be punished for bad
faith participation in the arbitration process where there was no
finding by the arbitration panel nor the trial court that defendant
failed to participate in good faith. At this point, we note that
Supreme Court Rule 91(b) specifically governs good faith
participation in the arbitration hearing, not the arbitration
process. A party's apparent bad faith before the arbitration
hearing, or in rejecting an arbitration award, is beyond the scope
of Supreme Court Rule 91(b). Knight, 291 Ill. App. 3d at 381;
Webber, 287 Ill. App. 3d at 463. We do not have a transcript of
the arbitration hearing, nor is there a finding that defendant
failed to participate in the arbitration hearing in good faith, and
so Supreme Court Rule 91(b) cannot justify the sanction imposed
here. Rather, the evidence in the record before us supports the
imposition of the sanction under Supreme Court Rules 237 and 137.
166 Ill. 2d R. 237; 134 Ill. 2d R. 137.
Defendant's third argument is that the sanction imposed in
this case was excessive. We emphasize that an overarching concern
present throughout the mandatory arbitration rules is that parties
and their counsel take the proceedings seriously. Dorsey, 273 Ill.
App. 3d at 900. More specifically, the concern is that no one make
"a mockery of this deliberate effort on behalf of the public, the
bar and the judiciary to attempt to achieve an expeditious and less
costly resolution to private controversies," and for parties not to
view the arbitration process as merely "another hurdle to be
crossed in getting the case to trial." 145 Ill. 2d Rs. 91(a), (b),
Committee Comments. See also 145 Ill. 2d Rs. 90(g), 93. The trial
court was well within its discretion in striking defendant's notice
of rejection and entering judgement on the arbitration award.
Finally, defendant's last contention on appeal is that
striking the rejection of the arbitration award is unconstitutional
because it violates the right to a jury trial. See Ill. Const.
1970, Art. 1, sec. 13. However, yet again, this same argument was
made by the same attorney from the same law firm several times, and
has been rejected each time. See Dorsey, 273 Ill. App. 3d at 904-
905; Gebbie, 288 Ill. App. 3d at 642-643. The arbitration rules do
not foreclose a litigant's access to a jury trial. A party has the
right to reject an arbitration award for any reason. However, in
an arbitration proceeding, "just as at trial, a party may lose the
right to proceed with a jury trial as a sanction for violating
certain rules." Dorsey, 273 Ill. App. 3d at 904.
We also reject defendant's argument that striking the notice
of rejection as a sanction violates the enabling act under Section
5/2-1004A of the Illinois Code of Civil Procedure, which provides
authorization for a court to send a case to arbitration and for a
party to reject an award. 735 ILCS 5/2-1004A (West 1994).
Defendant argues that, "[a]ny power which derives its authority
from the legislature is confined to the provisions within the
enabling statute." This same argument was rejected in Gebbie, 288
Ill. App. 3d at 642-643. The Illinois Consitution, and not the
legislature, clearly authorizes the supreme court to promulgate
procedural rules. Gebbie, 288 Ill. App. 3d at 642-643. Section
5/2-1004A recognizes the supreme court's authority to limit the
right to reject an arbitration award as "prescribed by rule." 735
ILCS 5/2-1004A (West 1994). As the court in Gebbie stated, "Rule
90(g) does not bar a litigant's access to a trial by jury unless he
himself loses that right by failing to comply with authorized
rules." Gebbie, 288 Ill. App. 3d at 643. In addition, a supreme
court rule prevails over a statute on the same subject in case of
a conflict. Gebbie, 288 Ill. App. 3d at 643. Thus, defendant's
argument is meritless.
For the above reasons, we affirm the judgment of the circuit
court.
Affirmed.
GREIMAN, P.J., and ZWICK, J., concur.