Akpan v. Sharma

October 31, 1997

1-96-2199

BERNARD AKPAN, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) Honorable
) Sidney A. Jones, III
DILARAM SHARMA, ) and
) Wayne D. Rhine,
Defendant-Appellant. ) Judges Presiding.

PRESIDING JUSTICE HARTMAN delivered the opinion of the court:
Defendant Dilaram Sharma appeals the circuit court's orders
requiring the parties to participate in a second mandatory
arbitration hearing, barring Sharma from rejecting the second
arbitration award, and entering judgment in favor of plaintiff,
Bernard Akpan. For reasons which follow, we reverse and remand.
Akpan sued Sharma after the car he was driving on November 1,
1992, was struck by a car owned and operated by Sharma, causing his
injuries and damages. Akpan filed suit against Sharma two months
later, on January 8, 1993. Sharma filed his answer, affirmative
defense, production requests, interrogatories, and notice of
deposition on February 4, 1993. The written discovery was to be
completed within 28 days. Two Supreme Court Rule 201(k) (143 Ill.
2d R. 201(k)) requests were made by Sharma; Akpan failed to
respond. In an order dated May 3, 1993 (May 3 order), the circuit
court ordered Akpan to comply with the discovery requests within 14
days, or "be barred from testifying at trial or arbitration."
Akpan failed to comply with the May 3 order. In addition,
according to an affidavit contained in the record, Akpan twice
failed to appear for his deposition, the first of which was
scheduled for June 2, 1993, and the second July 22, 1993.
Thereafter, the matter was referred to arbitration. Both
parties personally appeared at the hearing, held on October 21,
1993. Although Akpan was awarded $2,300, he did not testify
pursuant to the May 3 order barring him from doing so. Sharma
subsequently rejected the award, and the case was scheduled for
trial on four different dates: June 10, 1994; November 7, 1994;
March 13, 1995; and January 11, 1996. Two and one-half years after
entry of the May 3 order, on October 12, 1995, during the period
the case was being set and reset for trial, Akpan sought to have
the May 3 order reconsidered. Akpan ignored his own notices for
hearing on his reconsideration motion three times; it was stricken
twice and reset for hearing a third time in Akpan's absence.
Finally, on December 14, 1995, Akpan's counsel claimed they could
not comply with the May 3 order because Akpan moved during that
time without giving counsel his new address and telephone number.
Akpan filed this latter motion before a judge different than the
one that issued the May 3 order. Although the record does not
contain the order resolving this motion, the court apparently
granted the motion because it then scheduled a second arbitration
hearing, and enabled Akpan to testify. On February 23, 1996, the
second arbitration hearing was held. Sharma's attorney attended
the hearing on his behalf. The arbitrators entered an award in
favor of Akpan in the amount of $3,500.
Akpan moved for judgment in his favor in the amount of the
second arbitration award, arguing that Sharma should be barred from
rejecting the award because he did not appear personally at the
second arbitration proceeding. The basis for this contention was
that Akpan served Sharma with a Supreme Court Rule 237 notice to be
present at the first arbitration, with which he complied. Nothing
in the record, however, shows that any order was sought by Akpan or
entered by the circuit court to have the previous notice stand for
the second arbitration hearing or that a subsequent notice was ever
filed. The court denied Sharma's request for time to file a
written response to the motion, granted Akpan's motion, and entered
judgment in favor of Akpan in the amount of $3,500. Sharma
unsuccessfully moved for reconsideration of the order and judgment.
He appeals.
Sharma first asserts that the circuit court was not authorized
to order the second arbitration hearing. The record does not
contain this order, now allowing Akpan to testify, nor is any
reason shown for effectuating this change. 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. Landau & Associates,
P.C. v. Kennedy, 262 Ill. App. 3d 89, 92, 634 N.E.2d 373 (1994).
Here, the record contains the arbitration panels' decisions from
both proceedings, and provides other documentation in the record
sufficient for review.
The Supreme Court Rules relating to mandatory arbitration were
promulgated pursuant to section 2-1001A of the Code of Civil
Procedure. 735 ILCS 5/2-1001A (West 1994). The introductory
comments to these Rules (134 Ill. 2d Rs. 86, 87, Introductory
Comments) explain that such proceedings are intended to provide a
"feasible vehicle for an early, economical, and fair resolution of
monetary disputes." Moreover, the committee comments to Rule 86
(155 Ill. 2d R. 86, Committee Comments) state that when parties use
arbitration proceedings to resolve some civil disputes,
"considerable cost savings could be achieved if such matters could
be resolved at a two or three hour hearing as compared to a two- or
three-day trial to a jury." Rule 86(e) also makes applicable the
Code of Civil Procedure and the rules of the Supreme Court to
arbitration proceedings. 155 Ill. 2d R. 86(e).
Rule 89 authorizes discovery in arbitration cases in
accordance with established rules which "shall be completed prior
to the hearing in arbitration," and shall comport with the
requirements of Rule 222. 143 Ill. 2d R. 89. Rule 222(a) makes
the provisions of that rule applicable to mandatory arbitration
proceedings. 155 Ill. 2d R. 222(a). Rule 219 sets forth the
authority of the circuit court to enter sanctions for failure to
comply with the rules or orders relating to discovery. 143 Ill. 2d
R. 219.
Rule 92 (155 Ill. 2d R. 92) provides that at the close of the
arbitration hearing, the panel presiding over the hearing shall
issue an award and "dispose of all claims for relief." Under Rule
93 (145 Ill. 2d R. 93), any party present at the arbitration
hearing, either in person or through counsel, may file a written
notice of rejection of the award and request that the case proceed
to trial.
These rules were modelled, in part, on compulsory arbitration
laws enacted in the state of Pennsylvania. 134 Ill. 2d at 88-90.
The Pennsylvania Rules of Civil Procedure provide that a party may
challenge an arbitration award by filing a notice of appeal to the
trial court. 42 Pa. Cons. Stat. Ann. R. 1308 (1994). Under the
Pennsylvania Rules, "[i]f any party is dissatisfied with any aspect
of the award, the sole remedy is an appeal for a trial de novo."
42 Pa. Cons. Stat. Ann. R. 1307, Explanatory Note (1994). A rules
committee note to Rule 1308 (42 Pa. Cons. Stat. Ann. R. 1308, Rules
Committee Note (1994)) states that previously, parties could also
petition to set aside an arbitration award in specific
circumstances, but an amendment to Rule 1308 eliminated that
procedure, because a "[t]rial de novo is preferable since it
expedites the proceedings," and "[h]earings or depositions on the
petition proceedings could delay the proceedings."
Two Pennsylvania decisions interpreting the mandatory
arbitration rules reinforced the principle that the only way to
attack an arbitration award is to appeal the award and request a
trial. Lough v. Spring, 383 Pa. Super. 85, 556 A.2d 441 (1989);
Wilk v. Girard Bank, 342 Pa. Super. 488, 493 A.2d 695 (1985). In
Lough, plaintiffs moved to strike an arbitration award, intending
to seek a second arbitration hearing. The court determined that
this motion did not comply with stated procedures for appealing a
compulsory arbitration award, explaining that plaintiffs should
have requested a trial instead of a second hearing. Lough, 556 A.2d at 442. The Wilk court also determined that the proper way to
attack an arbitration award was to file a notice of appeal and ask
for a trial de novo. Wilk, 493 A.2d at 698.
The Illinois Rules similarly 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. 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.
In the present case, by ordering a second hearing instead of
allowing the case to proceed to trial after Sharma rejected the
first award, the circuit court overlooked the intent and
anticipated effect of the arbitration procedures, made even more
egregious by not directing that the case be retried on one of the
four dates for which trial was set after Sharma rejected the first
award. The policy underlying the entire procedure thereby was
circumvented. The second hearing should not have taken place; the
award issued at the end of that hearing was unauthorized, was in
error, is not binding upon Sharma, and is reversed.
The case cited by Akpan, Moon v. Jones, 282 Ill. App. 3d 335,
668 N.E.2d 67 (1996), is not on point. The circuit court in that
case ordered a second arbitration hearing after plaintiff there
petitioned to vacate the judgment pursuant to Rule 91(a).
Plaintiff in Moon had absented herself from the first arbitration
hearing, which resulted in her debarment from rejecting the award
under Rules 90(g) and 91(b). 155 Ill. 2d Rs. 90(g), 91(b). The
circuit court granted plaintiff's Rule 91(a) petition to vacate
judgment entered on an award in favor of defendant and granted a
rehearing; however, as the appellate court reasoned, the circuit
court improperly barred plaintiff from rejecting future arbitration
awards, whether plaintiff participated in the hearings in good
faith or not. Moon, 282 Ill. App. 3d at 337, 338. In the present
case, the May 3 order specifically barred Akpan from testifying at
trial or arbitration for repeated violations of discovery rules and
procedures and for failure to obey a court order requiring
compliance with continuing discovery requests. The debarment order
was not entered for Akpan's failure to attend an arbitration
hearing under Rule 91(a), but for repeated failure to comply with
discovery rules and a court order directing that he do so, as
authorized by Rule 219. Significantly, nothing in the record shows
that Akpan was required to produce requested discovery and appear
for his deposition prior to the arbitration hearing, which thereby
would have ameliorated the situation underlying entry of the May 3
order. The procedure followed by the circuit court had the effect
also of overriding the requirement of discovery completion before
hearing, as provided by Rule 86.
For the foregoing reasons, the decision of the circuit court
ordering a second arbitration hearing under these circumstances,
and barring Sharma from rejecting the award entered in that
hearing, is reversed, and this cause is remanded for proceedings
not inconsistent with this opinion.
Reversed and remanded.
HOFFMAN and SOUTH, JJ., concur.