Appeal from the Circuit Court of Cook County. No. 97 M1 301662 Honorable Llewellyn L. Greene-Thapedi, Judge Presiding.
The opinion of the court was delivered by: Justice Wolfson
Following mandatory arbitration in this negligence action, the circuit court entered judgment on the arbitration award in favor of plaintiffs Marilyn Goldman and Aaron Goldman and against defendant, Rajwant Dhillon. On appeal, defendant contends that the trial court abused its discretion when it barred her from rejecting the arbitration award. We affirm.
Plaintiffs' claim arose from an auto accident on June 14, 1996. According to the complaint, defendant ran a red light and struck Marilyn Goldman's vehicle, injuring her and her minor son Aaron. Marilyn Goldman filed suit individually and on behalf of Aaron. Because the request for damages did not exceed $15,000, the parties were required to participate in mandatory arbitration pursuant to Supreme Court Rule 86. 155 Ill. 2d R. 86. Defendant attended the arbitration, but her attorney was not present. The arbitration panel found in favor of plaintiffs and awarded $12,500 to Marilyn Goldman individually, and $2,000 to her as next friend of Aaron Goldman.
Defendant filed a timely rejection of arbitration award pursuant to Supreme Court Rule 93. 166 Ill. 2d R. 93. Plaintiff, in turn, filed a motion to quash the rejection, alleging that defendant failed to participate in the arbitration hearing in good faith, as required by Supreme Court Rule 91(b). 145 Ill. 2d R. 91(b).
The affidavit attached to plaintiffs' motion cited defense counsel's absence from the hearing, defendant's failure to offer any evidence, exhibits or arguments, and her failure to cross-examine plaintiffs. In response, defendant claimed that her attorney's failure to appear was caused by a miscommunication.
A hearing was held on the motion, after which the trial court granted the motion to quash and entered judgment on the arbitration award. The defendant did not include a transcript of this hearing in the record on appeal.
Defendant contends the trial court erred by barring her rejection of the arbitration award. She says the failure of her attorney to appear does not constitute waiver of her right to reject the arbitration award under Supreme Court Rule 91. 145 Ill. 2d R. 91.
In response, plaintiffs contend an order entitled "Order to Dismiss by Stipulation," entered August 21, 1998, estops defendant from appealing the circuit court's judgment. In the alternative, they contend the trial court's decision does not represent an abuse of discretion because defendant failed to participate in the arbitration process in good faith.
We first address plaintiffs' contention that the stipulated dismissal order estops defendant from bringing this appeal, since a finding in plaintiff's favor would make Discussion of substantive issues unnecessary.
We admit to a certain amount of confusion concerning the Order To Dismiss By Stipulation contained in the record. It was entered on August 21, 1998, eight days after judgment against the defendant was entered and 21 days before the notice of appeal from that judgment was filed. The Order makes no mention of the judgment. It finds the "cause of action has been fully compromised and settled and the parties have stipulated and agreed to dismissal of the complaint with prejudice***"
No stipulation to dismiss is contained in the record. At an October 2, 1998, hearing on the defendant's motion to reconsider, defense counsel said he was unaware of the dismissal. Yet, as far as we can tell, he has made no attempt to vacate it. Plaintiffs raised the issue in their brief on appeal, but the defendant has made no reply. Thus, our confusion.
Because the August 13, 1998, judgment stands, we have decided to move on to the merits of this appeal.
Supreme Court Rule 91(a) provides, in part:
"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 and a consent to the entry by the court of a judgment on the reward." 145 Ill. 2d R. 91(a).The rule does not require that both the party and the party's lawyer appear at the arbitration hearing in order to preserve the right to rejection. It requires that one of the two be present. Allstate Ins. Co. v. Pena, 227 Ill. App. 3d 348, 591 N.E.2d ...