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12/08/89 Saltzman Printers, Inc., v. Gunthorp-Warren Printing

December 8, 1989

SALTZMAN PRINTERS, INC., PLAINTIFF-APPELLANT

v.

GUNTHORP-WARREN PRINTING COMPANY, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

548 N.E.2d 585, 192 Ill. App. 3d 130, 139 Ill. Dec. 200 1989.IL.1917

Appeal from the Circuit Court of Cook County; the Hon. Thomas J. O'Brien, Judge, presiding.

APPELLATE Judges:

JUSTICE LORENZ delivered the opinion of the court. MURRAY, P.J., and PINCHAM, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

Plaintiff, Saltzman Printers, Inc., appeals from an order granting summary judgment (Ill. Rev. Stat. 1987, ch. 110, par. 2-1005) in favor of defendant, Gunthorp-Warren Printing Co. We address the issue of whether the order was final and appealable, and we dismiss the appeal for lack of jurisdiction.

Plaintiff filed a petition to vacate an arbitration award pursuant to section 12 of the Uniform Arbitration Act (Ill. Rev. Stat. 1987, ch. 10, par. 112), which stated the following. Defendant filed a complaint against plaintiff alleging that plaintiff did not pay for certain printing work defendant had completed. Plaintiff claimed the work was defective and filed a counterclaim against defendant for lost profits. Plaintiff and defendant submitted their respective claims against each other to binding arbitration with the Printing Industry of Illinois Commercial Board of Arbitrators (Board).

The rules of the Board provided that if a party was represented by an attorney at the arbitration hearing, the Board charged a $700-per-day fee plus expenses for its own legal counsel. To avoid the fee, plaintiff agreed to proceed without an attorney.

At the hearing, the parties were informed that one of the arbitrators, Stanley Kukla, was unable to attend and that an employee of Kukla's company, Wayne Obermiller, would substitute. The parties signed a "Submission to Arbitration" which listed Obermiller as one of the arbitrators and indicated that the parties approved of the arbitrators. David Rallo, the Board's attorney, was present at the hearing, and plaintiff alleged that on Rallo's advice, the arbitrators refused to hear plaintiff's counterclaim for lost profits. Plaintiff did not present evidence on that issue. Kukla arrived midway through the hearing, and plaintiff alleged he participated in the hearing. Plaintiff further alleged that both Kukla and Rallo participated in the arbitrators' deliberations.

The arbitrators found in favor of defendant and stated that plaintiff must pay defendant $22,185, which was $3,000 less than defendant's invoice for the work involved.

In the petition to vacate the award, plaintiff claimed that it was denied the right to counsel, that evidence of its claim for lost profits was improperly excluded, and that Kukla and Rallo improperly participated in the proceedings.

Defendant filed an answer to the petition, raising as an affirmative defense plaintiff's failure to make a timely objection to any alleged impropriety that occurred in the arbitration hearing. Defendant alleged that plaintiff did not raise any objection to the hearing until after the arbitrators handed down their award against plaintiff.

Both plaintiff and defendant moved for summary judgment on the petition. Plaintiff requested that the court vacate the arbitration award, and defendant requested that the court confirm the award.

The trial Judge granted defendant's motion for summary judgment, finding that plaintiff waived any impropriety that may have occurred in the arbitration hearing. The issue of plaintiff's claim for lost profits was remanded to the arbitration panel for a determination as to whether the reduction of the award by $3,000 was a finding on plaintiff's claim for lost profits. Although it is apparent from the record that the trial Judge issued a written opinion elaborating his findings, the opinion was not included in the record on appeal. Also not included in the record was the transcript of proceedings for the day the motions were argued. The Judge entered an order denying plaintiff's motion for summary ...


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