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Hornburg v. Esparza

October 04, 2000

RICHARD HORNBURG,
PLAINTIFF/COUNTER-DEFENDANT/APPELLEE,
AND
SUSAN HORNBURG,
PLAINTIFF/APPELLEE,
V.
CARMEN ESPARZA,
DEFENDANT/COUNTER-PLAINTIFF/APPELLANT.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, No. 98--AR--241 Honorable Thomas P. Ewert, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Slater

Defendant/Counterplaintiff Carmen Esparza filed a notice of rejection of an arbitration award in favor of plaintiff/ counterdefendant Richard Hornburg and plaintiff Susan Hornburg. The trial court struck Esparza's rejection due to procedural defects and entered judgment on the arbitration award. Esparza now appeals and we affirm in part and reverse in part.

Facts

This case arises from a motor vehicle accident that occurred on April 3, 1996, on Naperville Road in Bolingbrook, Illinois. According to plaintiffs' complaint, filed by attorney Douglas Ziech, Richard Hornburg and his wife Susan were injured as a result of a collision with a car driven by Esparza. Esparza filed a counterclaim for contribution against Richard as driver of the Hornburg vehicle. On October 29, 1998, Timothy Rathbun filed a supplemental appearance as attorney for the plaintiffs. On December 2, 1998, attorney Scott Ellefsen filed a general appearance on behalf of Richard Hornburg as counterdefendant and filed an answer to Esparza's counterclaim. Ellefsen subsequently filed a motion for a continuance, which was granted, and a motion to dismiss the counterclaim, which was later withdrawn.

An arbitration hearing was held on April 8, 1999. Although not entirely clear, the record indicates that four attorneys appeared at the hearing: Douglas Ziech represented Richard and Susan Hornburg; Brian Cichon, a member of Timothy Rathbun's firm, also apparently represented the Hornburgs; Scott Ellefsen represented Richard Hornburg on Esparza's counterclaim; and Michael Errera represented Esparza. At the conclusion of the hearing, the arbitrators ruled in favor of Richard Hornburg and against Esparza, awarding $5,000; ruled in favor of Susan Hornburg and against Esparza, awarding $27,000; and ruled in favor of Richard and against Esparza on Esparza's counterclaim for contribution.

On April 27, 1999, Esparza filed a notice of rejection of the arbitration award, along with a notice of filing, directed to the circuit court of Will County and attorney Douglas Ziech. No proof of service was filed with the notice of rejection or the notice of filing. There is no dispute, however, that the notices were received by the circuit court and by Ziech.

On May 24, 1999, the parties' attorneys appeared for a post-arbitration status hearing. Ellefsen appeared on behalf of Richard Hornburg as counterdefendant. Ziech was not present, but Douglas Mraz, of the Rathbun firm, represented the Hornburgs as plaintiffs. Ellefsen or Mraz, or both, moved to strike Esparza's rejection of the arbitration award on the bases that notice had not been given to Ellefsen as counsel for Richard Hornburg and because Esparza failed to include a certificate of service with the notices that had been filed. The trial court granted the motion to strike on those bases and entered judgment on the arbitration award. Esparza's subsequent post-judgment motion was denied and this appeal followed.

Analysis

Generally, the decision to bar a party from rejecting an arbitration award is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. See Easter Seal Rehabilitation Center for Will-Grundy Counties, Inc. v. Current Development Corp., 307 Ill. App. 3d 48, 716 N.E.2d 809 (1999); State Farm Insurance Co. v. Kazakova, 299 Ill. App. 3d 1028, 702 N.E.2d 254 (1998). Where, however, the issue involves an interpretation of the Supreme Court Rules, it is a question of law subject to de novo review by this court. See State Farm, 299 Ill. App. 3d 1028, 702 N.E.2d 254. The rule at issue here states in part:

"Rule 93. Rejection of Award

(a) Rejection of Award and Request for Trial. Within 30 days after the filing of an award with the clerk of the court, and upon payment to the clerk of the court of the sum of $200 for awards of $30,000 or less or $500 for awards greater than $30,000, any party who was present at the arbitration hearing, either in person or by counsel, may file with the clerk a written notice of rejection of the award and request to proceed to trial, together with a certificate of service of such notice on all other parties." (Emphasis added.) 166 Ill. 2d R. 93.

We first consider whether the trial court properly struck Esparza's rejection of the arbitration award for failure to file a certificate of service. Supreme Court Rule 93 requires filing of notice of rejection of an arbitration award with the clerk of the court, "together with a certificate of service of such notice on all other parties." 166 Ill. 2d R. 93(a). When Esparza filed her notice of rejection and notice of filing on April 27, 1999, no certificate of service was filed. The question is whether this defect was sufficient to warrant striking the notice of rejection and entering judgment against Esparza. We think not, for two reasons.

First, we note that "Rule 93(a) is only part of a comprehensive package of rules promulgated by the court to create a system of mandatory arbitration in Illinois. To give full effect to the overall legislative scheme, we cannot read the arbitration rules in a vacuum; we must attempt to harmonize the rules as a unified body of law." Lollis v. Chicago Transit Authority, 238 Ill. App. 3d 583, 587, 606 N.E.2d 479, 481 (1992). Supreme Court Rule 86, which establishes the mandatory arbitration system, specifically provides that the code of civil procedure and the rules of the supreme court are applicable to arbitration proceedings. 155 Ill. 2d R. 86; see Weisenburn v. Smith, 214 Ill. App. 3d 160, 573 N.E.2d 240 (1991). Therefore, because Rule 93 is silent regarding the effect of a party's failure to file a certificate of service, we consider Supreme Court Rule 104, which addresses the service and filing of pleadings and other papers. Much like the certificate of service requirement of Rule 93, Rule 104 provides that pleadings, written motions and other papers required to be filed shall include a certificate of counsel or other proof that copies have been served on all parties. 134 Ill. 2d R. 104(b). Unlike Rule 93, however, Rule 104 explains the consequences of noncompliance:

"(d) Failure to Serve Copies. Failure to deliver or serve copies as required by this rule does not in any way impair the jurisdiction of the court over the person of any party, but the aggrieved party may obtain a copy from the clerk and the court shall order the offending party to ...


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