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Hinkle v. Womack

February 17, 1999

DENNIS HINKLE AND PAULETTE HINKLE, PLAINTIFFS-APPELLEES,
v.
NICOLE WOMACK, DEFENDANT-APPELLANT, AND VERDA JOHNSON, A/K/A VERBA JOHNSON, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Justice Burke

Appeal from the Circuit Court of Cook County. Honorable Patrick S. Grossi, Judge Presiding.

Defendant Nicole Womack (defendant or Womack) appeals from orders of the circuit court barring her from rejecting an arbitration award entered against her and in favor of plaintiffs Dennis and Paulette Hinkle, denying her motion to reconsider, and denying her motion to vacate the judgment entered on the arbitration award. On appeal, defendant contends that: (1) the trial court erred in barring her from rejecting the arbitration award as a sanction for failing to appear in person at the arbitration hearing; (2) plaintiffs were not prejudiced by her absence from the arbitration hearing; (3) the arbitration award was excessive; and (4) the arbitration award did not provide a fair resolution to the dispute and was against the manifest weight of the evidence. For the reasons set forth below, we affirm.

On May 31, 1992, defendant and plaintiff Dennis Hinkle (Dennis) were involved in an automobile accident when defendant's vehicle struck Dennis'. The vehicle defendant was driving was owned by defendant Johnson. *fn1 At the time, Dennis, a police officer for the City of Harvey, Illinois, was on duty in a marked squad car.

On May 26, 1994, Dennis and his wife, Paulette, filed a complaint against defendant, as the driver of the vehicle, and Johnson, as the owner of the vehicle, seeking damages for the injuries sustained by Dennis and loss of consortium suffered by Paulette. Defendants were served with the complaint and, on December 12, 1994, both defendants' retained counsel filed appearances. The case was assigned to mandatory arbitration and, on October 15, 1996, plaintiffs served Rule 237 notices to produce upon defendants, requiring defendants to appear at the arbitration. At the arbitration hearing on October 30, 1996, defendants' attorney was present, but neither defendant appeared in person. For the purposes of the hearing, defendants' counsel admitted liability. A transcript of the arbitration hearing does not appear in the record, but plaintiffs' documentary evidence, including proof of the damage to Dennis' vehicle and his medical and work records, do appear. The evidence produced at the arbitration established that the damage claim to Dennis' vehicle was settled for $931; Dennis' medical bills totaled $205; and the Harvey Police Pension Board awarded Dennis a line of duty disability payments totaling 65% of his salary due to his injury. Dennis' medical records indicate that he had previously injured his back in 1982, 1987, and 1989; several of Dennis' doctors diagnosed his injury as chronic low back pain; Dennis had back surgery in 1989, but his pain persisted; none of the doctors specifically indicated that the accident was the cause of Dennis' back pain or that the accident aggravated the pain; and the doctors agreed that the extent of Dennis' injury would keep him from performing his duties as a street officer.

The arbitrators entered an award in favor of Dennis against defendant in the amount of $30,000 and in favor of Paulette against defendant for $5,000. The arbitrators found against plaintiffs and in favor of Johnson on plaintiffs' claims against Johnson. On November 14, 1996, both defendants filed a notice of rejection of the arbitration award.

After defendants rejected the award, plaintiffs filed a petition to disallow defendants' rejection as a sanction for defendants' failure to appear at the arbitration. Defendants filed a response, arguing that (1) plaintiffs suffered no prejudice as a result of defendants' absence; (2) the award was so excessive as to be unfair; and (3) debarring defendants from rejecting the award would violate (i) their Illinois constitutional right to a trial by jury and (ii) debarment violates the enabling statute (735 ILCS 5/2--1004A (West 1994)), which permits trial courts to send cases to arbitration, because that statute does not provide for debarring a party from rejecting the award. On January 10, 1997, the trial court granted plaintiffs' motion, debarred defendants from rejecting the award, and entered judgment against defendant in accordance with the arbitration award. However, the January 10, 1997, order did not dispose of the claim against Johnson. On January 31, defendant filed a motion to reconsider the January 10 order, which the trial court denied on March 11. On April 1, defendant filed a notice of appeal from the January 10 and March 11 orders in this court (No. 1--97--1245).

On June 18, 1997, defendants filed an emergency motion to vacate the January 10, 1997, order and enter a corrected judgment. The trial court, on June 19, entered judgment on the arbitration award in favor of Johnson. On June 23, both defendants filed a motion to vacate the June 19 order pursuant to section 2--1301 of the Code of Civil Procedure (735 ILCS 5/2--1301 (West 1994)). In ruling on the motion on October 16, the trial court stated: "On June 23, 1997 *** [defendant] filed her motion to vacate Judgment pursuant to 735 ILCS 5/2--1301 to vacate the judgment on award of June 19, 1997. *** [T]his is in error as the content of the motion and the exhibits refer to the judgment entered on January 10, 1997 and the court will treat the motion as relating to the judgment of January 10, 1997. Since more than 30 days had passed (the award was final as to Nicole Womack on January 10, 1997) when the defendant filed its' motion to vacate the judgment, the proper motion should be a 735 ILCS 5/2--1401 motion. The court may, in its discretion, vacate judgments under either section of the Code of Civil Procedure. The court chooses to proceed as if the correct motion was filed since under Supreme Court Rule 91(a) the defendant could proceed under either section." The trial court denied defendant's motion, finding that it did not "have the authority to overturn the arbitration award on the basis the award is excessive, or unreasonable, or arbitrary." The trial court noted that defendant failed to "present any affidavits or any reasons why she was not present at the [arbitration] hearing." Defendant then filed another notice of appeal on October 24, 1997 (No. 1--97--3971). Both of defendant's appeals were subsequently consolidated.

We initially note that during oral argument before this court, defendant attempted to raise the argument for the first time that the trial court's belief that it lacked the authority to overturn the arbitrators' decision was error, and that the trial court applied the wrong standard of review in reviewing the arbitrators' award when it debarred her from rejecting the award. Defendant's counsel contended, at oral argument, that the trial court should have viewed the case as a whole, including considering the amount of the award, when it debarred defendant from rejecting the award. While counsel also contended at oral argument that this argument was made "indirectly" in defendant's briefs before this court, clearly this specific argument does not so appear, and was not specifically argued until oral argument. Consequently, defendant has waived the argument. See A.B. Habighurst v. Edlong Corporation, 209 Ill. App. 3d 426, 428, 568 N.E.2d 226 (1991) (holding issues not raised in a party's appellate brief are waived).

Defendant also argues that the trial court abused its discretion in barring her from rejecting the award under Supreme Court Rules 90(g) and 237, and that she "should have been allowed to *** proceed to trial on the merits, subject to an alternative sanction for her absence from the arbitration [hearing]." Plaintiffs argue that the trial court's debarment order was well within its discretion and defendant's failure to appear personally waived her right to reject the award.

The decision whether to bar a party from rejecting an arbitration award rests within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. Williams v. Dorsey, 273 Ill. App. 3d 893, 652 N.E.2d 1286 (1995). Debarment, however, may not be an appropriate sanction in every case. See Fiala v. Schulenberg, 256 Ill. App. 3d 922, 628 N.E.2d 660 (1993). It is also well settled that "the [mandatory arbitration] system is not to be used as a supplement to trial. Nor is the mandatory arbitration system to be used to decide certain issues piecemeal, while allowing the parties to go to trial on other issues. Rather, the system is an alternative to trial where all issues raised by the parties are decided by the arbitration panel." Kolar v. Arlington Toyota, 286 Ill. App. 3d 43, 46, 675 N.E.2d 963 (1996), aff'd, 179 Ill. 2d 271, 279, 688 N.E.2d 653 (1997).

Supreme Court Rule 90(g) provides that the "provisions of Rule 237 *** shall be equally applicable to arbitration hearings as they are to trials." 166 Ill. 2d R. 90(g). Supreme Court Rule 237 provides for compelling the appearance of parties at trial, and states that when "a [party] fail[s] to comply with the notice, the court may enter any order that is just, including any order provided for in Rule 219(c) that may be appropriate." 166 Ill. 2d R. 237. Supreme Court Rule 219 provides for the debarment of the offending party from "filing any other pleading relating to any issue to which the refusal or failure relates" (166 Ill. 2d R. 219(c)(ii)), and "maintaining any particular claim, counterclaim, third-party complaint, or defense relating to that issue" (166 Ill. 2d R. 219(c)(iii)).

While a party who appears through counsel, but not in person, at an arbitration hearing does not waive the right to reject the award (see Martinez v. Gaimari, 271 Ill. App. 3d 879, 882-83, 649 N.E.2d 94 (1995); Williams v. Dorsey, 273 Ill. App. 3d 893, 900-01, 652 N.E.2d 1286 (1995)), the trial court is nonetheless still free to issue sanctions, including debarment, for failing to appear in person pursuant to a Rule 237 notice to produce as long as the sanction is not an abuse of discretion. Williams, 273 Ill. App. 3d at 901. An abuse of discretion "occurs when the court rules arbitrarily or when its ruling 'exceed[s] the bounds of reason.' " Williams, 273 Ill. App. 3d at 901.

In Martinez, the trial court debarred the defendant from rejecting an award after she failed to appear at the arbitration hearing. The evidence disclosed that the defendant's attorney appeared, and although the defendant disputed liability, the defendant failed to present any evidence, simply cross-examined the plaintiff's witnesses, and made legal arguments. The Martinez court, in affirming the trial court, stated: "Even if [the] defendant's excuse for failing to attend the hearing is valid, the trial court's ruling [debarring the defendant from rejecting the award] is not against the manifest weight of the evidence. What is most important is that [the] defendant failed to present any evidence to rebut [the] plaintiff's case in chief. It is highly unlikely that [the] defendant would have proceeded in this manner if the cause had gone to trial. The purpose of the amendments to Rules 91 and 93 was to emphasize that '[a]rbitration must not be perceived as just another hurdle to be crossed in getting the case to trial.' [Citation.] Where, as here, a defendant fails to subject the plaintiff's case to the type of adversarial testing that would be expected at a trial, the mandatory arbitration process loses its value entirely." Martinez, 271 Ill. App. 3d at 883-84.

In Williams, the trial court debarred the defendants from rejecting the arbitration award against them. The Williams court held that such debarment was not an abuse of discretion because "[the] [d]efendants present[ed] no excuse for their attorney's failure to request a continuance or to seek a waiver of their appearance at the arbitration proceeding" and, although the defendants argued that their absence did not prejudice the plaintiffs, the Williams court concluded that the significance of the defendants' testimony was ...


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