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04/24/95 OLIVIA MARTINEZ v. BECKY GAIMARI

April 24, 1995

OLIVIA MARTINEZ, PLAINTIFF-APPELLEE,
v.
BECKY GAIMARI, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 93-AR-2157. Honorable Ann B. Jorgensen and Joseph S. Bongiorno, Judges, Presiding.

Rehearing Denied May 17, 1995.

The Honorable Justice Colwell delivered the opinion of the court: McLAREN, P.j., and Bowman, J., concur.

The opinion of the court was delivered by: Colwell

JUSTICE COLWELL delivered the opinion of the court:

Defendant, Becky Gaimari, appeals from an order of the circuit court of Du Page County which barred her from rejecting an arbitration award in favor of plaintiff, Olivia Martinez, and which entered a judgment on the award. Defendant argues that the trial court erred in (1) barring defendant from rejecting the award, (2) entering judgment on the award, and (3) failing to strike plaintiff's motion to bar defendant from rejecting the award. We affirm.

This case arose from a September 16, 1992, automobile accident involving plaintiff and defendant. Plaintiff's complaint sought a $7,887.23 judgment. The cause was assigned to mandatory arbitration, and the arbitration hearing commenced on January 7, 1994. The arbitrators found in favor of plaintiff and awarded her $7,887.23.

The arbitrators also unanimously found that defendant failed to participate in the hearing in good faith and in a meaningful manner. The arbitrators' factual basis for this finding reveals that plaintiff never served defendant with a notice requesting defendant to appear at the arbitration hearing. (See 134 Ill. 2d R. 237(b).) Defendant's counsel appeared at the hearing, but defendant did not. Although defendant's answer disputed liability, defense counsel did not present any evidence at the hearing. However, defense counsel cross-examined plaintiff and made legal arguments. On January 18, 1994, defendant filed a notice of rejection of the award and paid the $200 fee.

On February 18, 1994, plaintiff moved, pursuant to Supreme Court Rules 91(b) and 219(c) (Official Reports Advance Sheet No. 8 (April 14, 1993), R. 91(b), eff. June 1, 1993; 134 Ill. 2d R. 219(c)), for an order barring defendant from rejecting the award. Plaintiff also requested that the court enter judgment on the award. Neither plaintiff nor her attorney appeared at the April 12 hearing on plaintiff's motion. A secretary of plaintiff's counsel appeared, explained that plaintiff's attorney could not appear because he was engaged in a trial in another county, and requested a continuance. Defendant objected to a continuance. The trial court continued the matter to May 9 and ordered plaintiff's counsel to file within 14 days an affidavit stating that, on April 12, he in fact was engaged in a trial "with jurors or witnesses sworn."

At the May 9 hearing, defendant tendered her affidavit, which stated that she did not attend the arbitration hearing because her one-year-old son had an extremely high fever. She took her son to the hospital, and the doctor subsequently diagnosed defendant's son as having bronchitis. Also, defendant, noting that plaintiff's attorney never filed the required affidavit, moved to strike plaintiff's motion to bar defendant from rejecting the arbitration award. The trial court denied defendant's motion and ordered plaintiff's counsel to file the affidavit within seven days. The court then granted plaintiff's motion and entered a judgment on the arbitration award.

Plaintiff's counsel filed his affidavit on May 20. The affidavit stated that, on April 12, 1994, counsel had two jury trials scheduled in another county. This timely appeal followed.

Defendant's principal argument on appeal is that the trial court erred in barring defendant from rejecting the arbitration award. Plaintiff has not filed an appellee's brief. Therefore, we will address defendant's contentions under the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493.

Defendant relies on our decision in Weisenburn v. Smith (1991), 214 Ill. App. 3d 160, 157 Ill. Dec. 822, 573 N.E.2d 240. In Weisenburn, the plaintiff filed, pursuant to Rule 237, a notice requesting the defendant to be available to testify as an adverse witness at the arbitration hearing. The defendant did not appear, but his counsel was present. The trial court entered judgment on the arbitration award in the plaintiff's favor, finding that the defendant's notice of rejection was waived because he failed to appear at the arbitration hearing.

We reversed, relying on Supreme Court Rules 91 and 93. Rule 91 provided that "the failure of a party to be present, either in person or by counsel, at an arbitration hearing shall constitute a waiver of the right to reject the award." (134 Ill. 2d R. 91(a).) Rule 93 provided that "any party who was present at the arbitration hearing, either in person or by counsel, may file a notice of rejection of the award and request to proceed to trial." (Emphasis added.) 134 Ill. 2d R. 93(a).

We recognized that, pursuant to Rule 237, a party may be required to attend the hearing in person and that sanctions may be imposed for failing to attend. ( Weisenburn, 214 Ill. App. 3d at 164.) However, we held that, in light of the language of Rules 91 and 93(a), such a failure to appear cannot be deemed a waiver of the party's right to reject the award. ( Weisenburn, 214 Ill. App. 3d at 164.) To hold otherwise would effectively read parts of Rules 91 and 93 out of the arbitration scheme. ( Weisenburn, 214 Ill. App. 3d at 164.) Because the defendant in Weisenburn had counsel present at the hearing, he preserved his right to reject the ...


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