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06/30/95 DELPHINE WILLIAMS v. RANNIE DORSEY

June 30, 1995

DELPHINE WILLIAMS, PLAINTIFF-APPELLEE,
v.
RANNIE DORSEY, DEFENDANT AND COUNTERPLAINTIFF-APPELLEE, V. ANDREA ALLEN AND LARRY STAMPS, DEFENDANTS AND COUNTERDEFENDANTS-APPELLANTS. GRETA JONES, ADRIAN JONES, AND VALERIE DORSEY, PLAINTIFFS-APPELLEES, V. ANDREA STAMPS, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE RONALD S. DAVIS, JUDGE PRESIDING.

As Corrected July 25, 1995.

Presiding Justice Scariano delivered the opinion of the court: Hartman and McCORMICK, JJ., concur.

The opinion of the court was delivered by: Scariano

PRESIDING JUSTICE SCARIANO delivered the opinion of the court:

On September 29, 1992, counterplaintiff Rannie Dorsey (Dorsey) filed a complaint in the circuit court of Cook County seeking $15,000 in damages from defendants Andrea Allen (Allen) and Larry Stamps (Stamps) for injuries she allegedly sustained in a car accident on October 1, 1990. Dorsey claimed that Allen's negligent driving caused the collision of their cars at the intersection of Lamon Avenue and Walton Street in the City of Chicago. Stamps owned the car Allen was driving. (Hereinafter, Stamps and Allen are collectively referred to as defendants.)

Two other complaints were filed for injuries allegedly incurred as a result of the accident. On February 24, 1992, Greta Jones, Adrian Jones, and Valerie Dorsey filed a complaint against Andrea Stamps (a/k/a Andrea Allen) for injuries allegedly sustained in the same accident. They sought $10,056.95 in damages. On March 20, 1992, Delphine Williams, Dorsey's passenger on October 1, 1990, filed a two-count complaint seeking $15,000 in damages for her injuries resulting from the collision. She named Dorsey, Allen, and Stamps as defendants. Dorsey subsequently filed a "counterclaim" for contribution against Allen and Stamps. Dorsey was later granted leave to amend her complaint for contribution to read as a cross-claim.

Several unsuccessful attempts at service of process on defendants were made. However, on July 1, 1992, defendants filed their answer, counterclaim, and jury demand in Dorsey's cross-claim action. The circuit court issued an order consolidating the cases arising out of the car accident. On August 27, 1992, and September 10, 1992, defendants answered the complaints in the consolidated actions, each time demanding a jury trial. (See 735 ILCS 5/2-1105 (West 1992).) The trial court transferred the cases to mandatory arbitration pursuant to Supreme Court Rules. See 134 Ill. 2d R. 86 et seq.

On August 26, 1993, the panel of arbitrators unanimously found in favor of counterplaintiff Dorsey, and plaintiffs Williams, and Greta Jones and against defendant Allen. They awarded Dorsey $5,500 for her personal injury claim and $2,556.95 for her property damage claim; they awarded $7,000 to Williams, and $2,890 to Greta Jones. *fn1 They noted on the award that defendants were not present at the proceeding, even though a Rule 237 notice had been filed on June 29, 1993, on behalf of Greta Jones and Dorsey. They also noted that Greta Jones did not appear despite the filing of a Rule 237 notice to appear by defendants' attorney.

Defendants filed their notice of rejection on September 3, 1993. On September 15, Williams filed a motion for sanctions, asking the circuit court to bar defendants' rejection of the award. *fn2 She noted, as did the arbitrators, that defendants did not appear at the arbitration proceeding, despite the filing of a Rule 237 notice to appear. She additionally noted that defendants did not seek a waiver of their appearance. Defendants responded to the motion, arguing that under Rule 91, debarring them from rejecting the award was unwarranted because their counsel appeared and participated in the arbitration hearing. Allen further asserted: that she had appeared for her deposition, that Williams had not been prejudiced by her failure to appear; that Stamps, her husband, was merely the owner of the car and was not a witness to the accident; that defendants had not received notice of the date of the arbitration hearing because their attorney sent notice to the incorrect address; and that she had a meritorious defense. Gregory Morse, defendants' counsel, attached his affidavit to the response, averring that he was present and participated in the arbitration. Allen also attached her affidavit, reiterating that she did not receive notice of the date of the hearing and stating that she would be willing to attend another hearing.

On November 22, 1993, the trial court granted Williams' motion to debar rejection of the award and entered judgment on the arbitration award. *fn3 Defendants filed a motion to reconsider, essentially reiterating the arguments made in their response and attaching the same affidavits from Allen and Morse. Williams and Dorsey opposed the motion. On February 4, 1994, the court denied the motion to reconsider. Defendants now appeal.

Before reaching the merits of this appeal, we observe that the record consists only of the common law record; there is no certified transcript of proceedings or agreed statement of facts. While we may consider the issues raised by defendants by reference to the common law record (see Fiala v. Schulenberg (1993), 256 Ill. App. 3d 922, 924, 628 N.E.2d 660, 662, 195 Ill. Dec. 196), any doubts raised by insufficiencies in the record must be resolved against defendants who had the obligation to present this court with a sufficiently complete record of the trial court proceedings to support their claims of error ( Foutch v. O'Bryant (1984), 99 Ill. 2d 389, 391-92, 459 N.E.2d 958, 959, 76 Ill. Dec. 823).

Defendants first contend that they were not properly served with a Rule 237(b) notice to appear at the arbitration proceeding. They did not make this argument at trial; they have therefore waived its consideration on appeal. Schechter v. Blank (1993), 254 Ill. App. 3d 560, 563, 627 N.E.2d 106, 109, 193 Ill. Dec. 947, appeal denied (1993), 153 Ill. 2d 569, 624 N.E.2d 817.

Even absent waiver, defendants would not prevail on this claim. On June 29, 1993, Rannie Dorsey filed a document titled "RULE 237 SUPPLEMENTAL NOTICE TO PRODUCE AT TRIAL AND MANDATORY ARBITRATION HEARING" which stated:

"Pursuant to Supreme Court Rules 213(e), 237 and Section 60 of the Civil Practice Act, you are notified to produce at the ...


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