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Schmidt v. Joseph

June 19, 2000

MICHELLE SCHMIDT, PLAINTIFF-APPELLANT,
v.
SANTHOSH JOSEPH AND CHACKO JOSEPH, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Justice Gallagher

Appeal from the Circuit Court of Cook County Honorable John Laurie, Judge Presiding.

Michelle Schmidt (plaintiff) brought this action for personal injuries against Santhosh Joseph (defendant) following a car accident. At the mandatory arbitration proceedings, the arbitrators entered an award in favor of defendant and against plaintiff. Plaintiff filed a notice of rejection of the award and defendant moved to bar the rejection of the award pursuant to Supreme Court Rule 91 (145 Ill. 2d R. 91). The trial court granted defendant's motion to bar plaintiff from rejecting the award and later entered judgment on the award in favor of defendant. Plaintiff's motion to reconsider the trial court's order barring her from rejecting the arbitration award was denied with prejudice. Plaintiff filed this appeal.

Initially, plaintiff filed a complaint against defendant and his father, Chako Joseph, to recover damages for personal injuries allegedly resulting from an automobile accident occurring on May 20, 1996. Both defendant and Chako Joseph denied liability. On November 16, 1998, the trial court entered summary judgment on an uncontested motion in favor of Chako Joseph because he was not driving the vehicle when the accident occurred. The case against defendant remained pending.

The matter was set for arbitration on December 23, 1998, pursuant to Illinois Supreme Court Rule 86. 155 Ill. 2d R. 86. On October 20, 1998, plaintiff's attorney sent a letter to plaintiff disclosing the date, time and place of the arbitration. Defendant admits he did not forward a Rule 237(b) notice to plaintiff to compel her appearance. 166 Ill. 2d R. 237(b). On November 3, 1998, plaintiff's counsel sent opposing counsel evidentiary documents pursuant to Illinois Supreme Court Rule 90(c). 145 Ill. 2d R. 90(c). On December 19, 1998, plaintiff met with her counsel to prepare for the upcoming arbitration proceeding.

However, plaintiff mistakenly noted that the arbitration would occur on December 28, 1998. Therefore, plaintiff was not present for the arbitration hearing on December 23, 1998. Plaintiff's counsel was present and participated in the hearing. She presented an opening statement, she called defendant as an adverse witness and elicited testimony regarding liability, she gave a closing argument, and she submitted the Rule 90(c) documents which included plaintiff's medical records, reports and bills for treatment.

The arbitrators found in favor of the defendant. The award specifically stated that "plaintiff Michelle Schmidt not personally present at hearing, but she appeared through Counsel - No evidence of Rule 237 Notice for Plaintiff to appear." There is no transcript of the arbitration hearing in the record.

Plaintiff filed a notice of rejection of the award in the circuit court of Cook County on January 15, 1999, pursuant to Supreme Court Rule 93. 166 Ill. 2d R. 93. Defendant moved to bar the rejection of the award, citing Illinois Supreme Court Rule 91 (145 Ill. 2d R. 91) and Hill v. Joseph Behr & Sons, Inc., 293 Ill. App. 3d 814, 688 N.E.2d 1226 (1997). Defendant contended that plaintiff failed to appear at the hearing and thus failed to participate in good faith and in a meaningful manner. Plaintiff submitted an affidavit in response which stated that she failed to appear at the arbitration hearing "because [she] thought the hearing was on December 28, 1998." Plaintiff further stated she requested to be off work on December 28, 1998, to attend the hearing. Her supervisor at work also submitted an affidavit to the trial court confirming that the plaintiff requested to be off work on December 28, 1998, in order to appear at the hearing. Following briefs and arguments, the trial court granted defendant's motion to bar plaintiff's rejection of the award on March 29, 1999. Plaintiff moved for reconsideration contending that the trial court had no basis for finding that plaintiff did not participate at the hearing in good faith. The court denied the motion with prejudice on June 15, 1999, after a full briefing and a hearing. On July 13, 1999, plaintiff filed a notice of appeal.

The first issue to be resolved by us concerns our ability to consider the issues raised by plaintiff in this court. According to defendant, this court lacks jurisdiction to address plaintiff's allegations in view of the fact that, in her notice of appeal, plaintiff stated that she was seeking review of the trial court's order dated June 15, 1999. In that order, the trial court denied plaintiff's motion to reconsider its judgment in favor of defendant.

Citing Lewanski v. Lewanski, 59 Ill. App. 3d 805, 815, 375 N.E.2d 961, 968 (1978), defendant contends "[i]t is well established that an appellate court has jurisdiction only of those matters which are raised in the notice of appeal." Defendant contends that plaintiff's notice of appeal does not refer to any orders entered by the trial court besides the motion for reconsideration.

The purpose of a notice of appeal is to inform the party who prevailed in the circuit court as to which aspect of the judgment appealed from will be reviewed. Heller Financial, Inc. v. Johns-Byrne Co., 264 Ill. App. 3d 681, 689, 637 N.E.2d 1085, 1091 (1994). To that end, notice is to be liberally construed when determining what matters were properly raised in the notice, and a defect will be deemed one of form, so long as that construction does not prejudice the appellee. Heller Financial, Inc., 264 Ill. App. 3d at 689, 637 N.E.2d at 1091.

It is well settled that the notice of appeal may be construed to bring up for review an earlier unspecified order where that order is a step in the procedural progression to the specified order. Heller Financial, Inc., 264 Ill. App. 3d at 689, 637 N.E.2d at 1091. In Heller Financial, Inc., as in the case at bar, appellant's notice of appeal designated only the order denying its motion to reconsider. The court held:

"Here, in its notice of appeal, [appellant] seeks review of the trial court's refusal to reconsider its judgment, a ruling wherein the court necessarily contemplated once again all of the orders which comprised its ultimate judgment in the case. Thus, all of those previous orders were subsumed by the order from which [appellant's] appeal is taken." 264 Ill. App. 3d at 689, 637 N.E.2d at 1091.

Therefore, all of the previous orders in this case are subsumed by the June 15, 1999, order. After liberally construing plaintiff's notice of appeal, we find that it presents to us all of the issues about which plaintiff complains on appeal. Furthermore, defendant does not suggest that he was prejudiced in any way or that he was put at a disadvantage in defending the judgment from which this appeal was actually taken. Plaintiff's appeal of the substantive questions determined by the trial court will now be considered by this court.

In her appeal, plaintiff first argues that the trial court abused its discretion in barring the plaintiff's "notice of rejection" pursuant to Illinois Supreme Court Rules 91 and 93. 145 Ill. 2d R. 91; 166 Ill. 2d R. 93. Second, plaintiff argues that the trial court erred in its determination that the plaintiff participated in bad faith at the arbitration hearing without the assistance of an adequate record of the proceedings or a finding by the arbitrators of a failure of good-faith participation. ...


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