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Morales v. Mongolis

December 11, 1997

MATIAS MORALES, PLAINTIFF-APPELLEE,
v.
DINA MONGOLIS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable EDWIN J. RICHARDSON, Judge Presiding.

Released for Publication January 22, 1998.

The Honorable Justice South delivered the opinion of the court. Hartman and Hourihane, JJ., concur.

The opinion of the court was delivered by: South

On June 30, 1993, plaintiff, Matias Morales, brought this action against defendant, Dina Mongolis, to recover damages resulting from the alleged negligence of Mongolis in driving her automobile. On March 24, 1994, Morales filed a request for admission of facts. On April 11, 1994, the circuit court quashed the request, stating that the matters contained therein were more suited to a discovery deposition.

Morales filed his notice for the discovery deposition of Mongolis on June 28, 1994. The deposition was originally scheduled for August 4, 1994, but did not proceed on that day. Thereafter, Mongolis failed to appear for her scheduled discovery deposition on approximately seven occasions. On three occasions, due to Mongolis cancelling her discovery deposition without providing sufficient notice, Morales was forced to pay appearance fees for the court reporter who had already arrived at Morales' attorney's office.

On June 21, 1995, Morales filed a motion for sanctions that set forth several prior attempts to obtain the discovery deposition of Mongolis and asked for relief, including an assessment of attorney fees and expenses against Mongolis and her attorney. The motion also requested that Mongolis be compelled to appear for her deposition within seven days, that she be barred from testifying at trial, and that her answer be stricken. On June 23, 1995, the circuit court entered an order compelling Mongolis to appear for her discovery deposition on or before June 30, 1995, barring her from testifying as a witness if she failed to appear for her deposition and continuing the motion for costs and fees to July 5, 1995. On June 29, 1995, Morales filed a notice to compel the appearance of Mongolis pursuant to Supreme Court Rule 237(b) (134 Ill. 2d R. 237(b)). Mongolis never appeared for her discovery deposition, and she was consequently barred from testifying as a witness pursuant to the June 23, 1995, court order.

On July 5, 1995, the circuit court entered an order assigning this matter to mandatory arbitration. The circuit court also entered an order awarding $65 in costs and $108 in attorney fees against Mongolis and her lawyers pursuant to Morales' motion for sanctions. On August 4, 1995, Mongolis filed a motion to reconsider the entry of sanctions, and the motion was denied on September 18, 1995.

The case was scheduled for mandatory arbitration on October 26, 1995. On October 19, 1995, Mongolis filed a motion to be excused from appearing at the arbitration hearing or in the alternative to continue the arbitration. Attached to the motion was Mongolis' affidavit that she was unable to appear at the scheduled arbitration hearing due to a previously scheduled throat surgery on October 25, 1995. She did not produce an affidavit from her physician in support of her motion. On October 24, 1995, the motion was denied. The arbitration hearing proceeded on October 26, 1995, and Mongolis did not personally appear. Mongolis' attorney was present, however, and conducted opening statement, cross-examination and closing argument. Following the hearing, the arbitrators entered an award in favor of Morales and against Mongolis in the amount of $15,000.

On November 8, 1995, Mongolis filed a notice of rejection of the award pursuant to Supreme Court Rule 93. Rule 93 provides in pertinent part:

"(a) Rejection of Award and Request for Trial. Within 30 days after the filing of an award with the clerk of the court, and upon payment of the sum of $200 to the clerk of the court, any party who was present at the arbitration hearing, either in person or by counsel, may file with the clerk a written notice of rejection of the award and request to proceed to trial, together with a certificate of service of such notice on all other parties." 145 Ill. 2d R. 93(a).

On December 5, 1995, Morales moved to bar Mongolis from rejecting the award pursuant to Supreme Court Rule 90(g), on the grounds that Mongolis failed to personally appear at the arbitration hearing pursuant to Morales' June 29, 1995, Supreme Court Rule 237(b) notice, and Mongolis' repeated failure to properly participate throughout the course of the proceeding. Mongolis filed a response supported by a note from her physician stating that she underwent throat surgery on October 25, 1995.

On January 22, 1996, following a reassignment of this matter after Mongolis' motion for substitution of judges was granted, the circuit court barred Mongolis from rejecting the arbitration award and entered judgment on the award against Mongolis in the amount of $15,000. On February 7, Mongolis filed a motion to reconsider, which was denied on February 14, 1996. This appeal followed. We affirm.

As an initial matter, we observe that the record consists only of the common law record; there is no certified transcript of proceedings or agreed statement of facts. 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. Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92, 459 N.E.2d 958, 959, 76 Ill. Dec. 823 (1984); Landau & Associates, P.C. v. Kennedy, 262 Ill. App. 3d 89, 92, 634 N.E.2d 373, 199 Ill. Dec. 534 (1994); Fiala v. Schulenberg, 256 Ill. App. 3d 922, 924, 628 N.E.2d 660, 662, 195 Ill. Dec. 196 (1993).

Mongolis first argues that she was never served with a Rule 237(b) notice to appear at the arbitration hearing. Because Mongolis did not raise this argument before the trial court, she has, therefore, waived its consideration on appeal. Williams v. Dorsey, 273 Ill. App. 3d 893, 897, 652 N.E.2d 1286, 210 Ill. Dec. 310 (1995), ...


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