Appeal from the Circuit Court of Cook County. No. 95 M 1300425 The Honorable Sidney A. Jones III, Presiding Judge.
The opinion of the court was delivered by: Justice Buckley
In November 1994, plaintiff Carolyn Eissman was involved in a traffic accident with a Pace Suburban bus (Pace). In February 1995, she filed suit against Pace in the municipal department of the Cook County circuit court and the case was assigned for mandatory arbitration pursuant to Supreme Court Rule 86. 155 Ill. 2d R. 86. On July 11, 1996, plaintiff filed a motion to transfer the case to the law division, stating that she recently underwent surgery and that her damages now exceeded the monetary limit authorized for mandatory arbitration in Cook County. While the trial court ordered on July 18, 1996, that the case be transferred, no one notified the arbitration center of the trial court's transfer order. Arbitration proceeded and, on August 5, 1996, the arbitrators entered an award in Pace's favor. Plaintiff never rejected the arbitrator's award and on September 16, 1996, the trial court entered a judgment on the award. Plaintiff proceeded with her case in the law division, allegedly unaware of the arbitrator's award. After learning of the award, plaintiff filed a series of motions, including a petition to vacate the September 16, 1996, judgment pursuant to section 2-1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1401 (West 1998)). In February 1998, the trial court denied plaintiff's petition. Plaintiff appeals, arguing that (1) the arbitrators had no authority to enter an award; and (2) the circuit court abused its discretion by denying her section 2-1401 petition. We vacate the September 16, 1996, judgment on the arbitrators' award and remand.
In May 1996, plaintiff's case was scheduled for mandatory arbitration on August 2, 1996. On July 11, 1996, plaintiff alleged that her medical bills escalated to $22,000 and filed a motion to transfer her case to the law division. The supplemental record contains an unsigned and unnotarized affidavit bearing the name Elizabeth Markus. the affidavit's date was left blank, bearing the language "[s]ubscribed and [s]worn to [b]efore [m]e [t]his ___ [d]ay of October, 1996." This improper affidavit avers that Markus appeared in court on defendant's behalf on July 18, 1996, in response to plaintiff's motion. According to the affidavit, plaintiff failed to appear and the trial court struck the motion. The supplemental record contains a second affidavit from Markus, this one properly signed. In it, Markus avers that she signed the previous affidavit and that its contents were accurate. However, this second affidavit does not properly identify and incorporate the first affidavit. In any event, the record indicates that Pace had knowledge of the motion and contains an order prepared by plaintiff's counsel and signed by Judge Victoria A. Stewart on July 18, 1996, transferring the case to the law division.
While Judge Stewart entered an order transferring plaintiff's case to the law division, no one presented the order to the arbitration center or otherwise informed the arbitrators that the case had been transferred. Pace states in its brief and through counsel's affidavit that it was also unaware that Judge Stewart transferred the case. On August 2, 1996, Pace appeared for the scheduled arbitration while plaintiff did not. The arbitrators found in Pace's favor specifically due to plaintiff's failure to appear. On August 5, 1996, the circuit court clerk mailed notice of the arbitration award to plaintiff's counsel. However, plaintiff failed to reject the award.
On September 16, 1996, Judge Sidney A. Jones III presided over the judgment on award call and entered a judgment on the arbitrators' award in Pace's favor. Also on September 16, 1996, Judge Jones entered an order prepared by plaintiff's counsel stating that the order transferring the case to the law division would stand. Pace's counsel, Robert H. Lang, averred in a properly executed affidavit that plaintiff was neither present nor notified, either personally or through counsel, of this order. Lang further averred that he appeared at a status call in the law division on September 18, 1996, and that plaintiff failed to appear. According to Lang's affidavit, he informed the court that the matter had been reduced to judgment in the municipal division. Judge Randy A. Kogan entered an order dismissing plaintiff's case in the law division for want of prosecution. Pace states in its brief (without support in an affidavit) that it learned of the case's existence in the law division and of the status call through the Chicago Daily Law Bulletin.
On October 1, 1996, plaintiff filed a motion to vacate the September 18, 1996, dismissal for want of prosecution order. However, on October 15, 1996, this motion was stricken from the call. On October 18, 1996, plaintiff filed an emergency notice of motion via facsimile seeking to vacate the September 18, 1996, dismissal-for-want-of-prosecution order. No indication exists in the record that the trial court ruled on this motion.
According to Lang's affidavit, on February 13, 1997, he verified that the September 16, 1996, judgment on the arbitrators' award had not been vacated. On that basis, he closed his files and purged all of the pleadings related to the case.
On July 15, 1997, plaintiff filed another motion to vacate the September 18, 1996, dismissal-for-want-of-prosecution order. On July 22, 1997, Judge Donald J. O'Brien granted plaintiff's motion, reinstated her claim, and set the matter for trial on November 20, 1997. According to Pace's brief, it never received notice of the July 15, 1997, motion to vacate and was neither present nor aware that Judge O'Brien granted it.
On November 6, 1997, plaintiff served Pace with notice that it intended to depose Dr. Ronald L. Silver. According to defendants' brief, this was the first document that it received from plaintiff in nearly 14 months. Pace, therefore, filed an emergency motion to strike the November 20, 1997, trial, arguing that the case had already been reduced to judgment on September 18, 1996, and as far as it knew, that judgment had never been vacated.
On November 17, 1997, Judge Jones ordered that the August 2, 1996, arbitration was lawful and that the September 16, 1996, judgment was proper. However, Judge Jones did not enter an order specifically pertaining to the November 20, 1997, trial date. Pace states in its brief, unsupported by an affidavit, that it appeared for the November 20, 1997, call. However, according to Pace, the case did not appear on the call and Pace learned from the clerk that the matter was not scheduled for trial on that date. The record indicates that, the same day, Judge Earl E. Strayhorn assigned the case to Judge Jones for a December 17, 1997, status call.
Also on November 17, 1997, plaintiff filed her petition to vacate the September 16, 1996, judgment on award of arbitration, pursuant to section 2-1401 of the Code. On February 13, 1998, following oral argument, Judge Jones specifically stated that plaintiff had a duty to notify the arbitration center but failed to do so. Judge Jones further stated that, "[w]here there are con-flicting orders, the first order drawn is the one that gets entered. In this case, that would have been the judgment on award order. The intended disposition, that's the one entered." Finally, Judge Jones noted that plaintiff failed to attend status calls for her case, found that the transfer to the law division was procedurally deficient, and denied plaintiff's section 2-1401 petition. On March 19, 2000, plaintiff filed the instant appeal.
Plaintiff first argues that the arbitrators lacked authority to enter an award because the case was no ...