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Johnson v. Saenz

February 25, 2000

CAROL J. JOHNSON, PLAINTIFF-APPELLEE,
V.
BERTHA SAENZ, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Winnebago County. No. 98--AR--386

Honorable Timothy R. Gill, Judge, Presiding.

JUSTICE COLWELL delivered the opinion of the court:

Plaintiff, Carol J. Johnson, brought an action against defendant, Bertha Saenz, for personal injuries she sustained in an automobile accident with defendant. Following mandatory arbitration, the circuit court of Winnebago County entered judgment on the arbitration award in favor of plaintiff and against defendant. On appeal, defendant contends that the circuit court abused its discretion in barring her from rejecting the arbitration award as a sanction for failing to appear in person at the arbitration hearing. For the reasons set forth below, we reverse and remand.

FACTS

On May 29, 1998, plaintiff filed a complaint in the circuit court of Winnebago County. The complaint alleged that on June 10, 1996, plaintiff was stopped at a red light at the intersection of North Mulford Road and Mulford Village Drive in Rockford. Defendant's car collided with plaintiff's car as defendant approached the stop light.

Attached to plaintiff's complaint was a notice to compel defendant's appearance at the arbitration hearing pursuant to Supreme Court Rule 237 (166 Ill. 2d R. 237). On May 30, 1998, defendant was served with summons and complaint. The summons indicated that defendant was required to appear at the Winnebago County courthouse, which was located at 400 West State Street in Rockford, for her arbitration. The summons also stated that the arbitration was scheduled for 9 a.m. on June 23, 1998. The case was continued, and an order was entered on June 30, 1998, which indicated that the arbitration was to take place on November 19, 1998. The order provided that the arbitration was scheduled to take place at 10:45 a.m. at the arbitration center, which was located at Stewart Square, Suite 25, 308 West State Street in Rockford.

Following a hearing on November 19, 1998, a majority of the three-member panel of arbitrators entered an award of $19,500 in favor of plaintiff. The award specifically noted that defendant did not personally appear at the arbitration. However, defendant's attorney was present. Shortly after the hearing, defendant's attorney went to the county courthouse on an unrelated matter. While he was there, he noticed defendant sitting in a courtroom.

Subsequently, defendant filed a notice of rejection of the arbitrators' award. In response, plaintiff filed a motion to bar defendant from rejecting the award. Plaintiff's motion cited two reasons, which plaintiff identified as two different counts. Count I, which was brought pursuant to Supreme Court Rule 90(g) (166 Ill. 2d R. 90(g)), alleged that defendant should be barred from rejecting the award because defendant violated Rule 237 when she failed, without good cause shown, to appear at the arbitration. Count II, which was brought pursuant to Supreme Court Rule 91(b) (145 Ill. 2d R. 91(b)), alleged that defendant should be barred from rejecting the award because she failed to participate in the arbitration in a good-faith and meaningful manner. Count II was based on the allegation that defendant's attorney sent subpoenas to plaintiff's medical providers before the arbitration that were returnable one day after the arbitration. Plaintiff claimed that this fact showed that defendant had the intention to reject the award even before the arbitration was held.

Defendant responded to plaintiff's motion and attached her affidavit to the response. In the affidavit, defendant stated that she does not speak or read English fluently. Defendant claimed that she did not appear at the arbitration hearing because she went to the courthouse and not the arbitration center. According to defendant, when she arrived at the courthouse, court personnel directed her to a courtroom, and no one at the courthouse ever told her that she should have gone to the arbitration center.

A hearing was held on plaintiff's motion to bar rejection, and the trial court granted the motion on count I. The court specifically noted that it would not make any decision as to count II. The trial court also entered judgment in favor of plaintiff for $19,500. Defendant then filed the instant appeal.

ANALYSIS

At the outset, we note that plaintiff has filed a motion to strike defendant's proposed "Agreed Report of the Proceedings." We ordered that motion taken with the case. Plaintiff argues that defendant's proposed report of proceedings violates Supreme Court Rule 323(c) (166 Ill. 2d R. 323(c)). Specifically, plaintiff alleges that defendant's proposed report is deficient in that (1) she (plaintiff) was never served with the proposed report of proceedings and (2) the report was never certified by the trial court. We agree and grant plaintiff's motion.

Having stricken defendant's proposed report of proceedings, we observe that the record on appeal consists merely of the common-law record. It is the duty of appellant to provide an adequate record for review by the appellate court. Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984). Nevertheless, if the record 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 trial court's order can be considered on appeal. Foutch, 99 Ill. 2d at 391-92; Morales v. Mongolis, 293 Ill. App. 3d 660, 663 (1997). We find that the record is sufficient to address defendant's contention of error.

We now address the merits of the case. Defendant contends that the trial court abused its discretion in barring her from rejecting the arbitration award. According to plaintiff, defendant has waived review of the judgment because defendant's brief only raises issues under Rule 91(b), and the trial court specifically refused to address the count brought pursuant to that rule. Plaintiff claims that any argument in the reply brief involving Rule 90(g) is waived. Alternatively, ...


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