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Gershak v. Feign

November 7, 2000

PAUL GERSHAK,
PLAINTIFF-APPELLEE,
V.
MARLENE J. FEIGN AND KELLY FEIGN,
DEFENDANTS-APPELLANTS.
ARTHUR HENRY, PLAINTIFF-APPELLEE,
v.
DONNA MURPHY,
DEFENDANT-APPELLANT.
ALLEN PRODEHL, PLAINTIFF-APPELLEE,
V. KATHY PAPADIMITRIOU AND PETER PAPADIMITRIOU, DEFENDANTS-APPELLANTS. DAWN E. SAVAGE, PLAINTIFF-APPELLEE,
v.
MELVIN EPSTEIN, DEFENDANT-APPELLANT. ROBERT J. DENZEL, PLAINTIFF-APPELLEE,
v.
SAM SAPP, DEFENDANT-APPELLANT. KEITH ELLISON, PLAINTIFF-APPELLEE,
v.
CHRISTOPHER OMIOTEK, DEFENDANT-APPELLANT. BETHZAIDA SOTOMAYOR AND VALENTIN SOTOMAYOR, INDIVIDUALLY AND AS PARENTS AND N/B/F OF ENELY SOTOMAYOR, PLAINTIFFS-APPELLEES, V.
DAVID S. REED AND DAVID L. REED, DEFENDANTS-APPELLANTS. ELIZABETH PENA AND ARMANDO PENA,
PLAINTIFFS-APPELLEES,
V.
SHAH POPAL,
DEFENDANT-APPELLANT.
THERESA FERNANDEZ AND ALFRED ZUCCARRELLO,
PLAINTIFFS-APPELLEES, V.
RAY L. BROWN,
DEFENDANT-APPELLANT. STATE FARM INSURANCE COMPANY, A/S/O OLIVIA WAGGONER, PLAINTIFF-APPELLEE, V.
RUTH EVA SCHMIDT, INCORRECTLY SUED AS ROSI SCHMIDT,
DEFENDANT-APPELLANT.
LIBERTY MUTUAL INSURANCE GROUP, A/S/O SOUTH HOLLAND METAL FINISHING,
PLAINTIFF-APPELLEE, V.
JEFFREY J. LOVATO,
DEFENDANT-APPELLANT.
HANOVER INSURANCE COMPANY, A/S/O FRANK MERINO,
PLAINTIFF-APPELLEE, V.
JOHN GAWRYS,
DEFENDANT-APPELLANT.
FRANCES ESTRADA, LUIS MALDONADO, JONATHAN BRITO AND JOSEPH ESTRADA,
PLAINTIFFS-APPELLEES, V.
VICTORIO DAYRIT,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County No. 92 M1 26177 Honorable Sidney A. Jones, III, Judge Presiding. Appeal from the Circuit Court of Cook County No. 96 M1 305102 Honorable Sidney A. Jones, III, Judge Presiding. Appeal from the Circuit Court of Cook County No. 96 M1 303127 Honorable Sidney A. Jones, III, Judge Presiding. Appeal from the Circuit Court of Cook County No. 96 M3 001746 Honorable Arthur Janura, Judge Presiding. Appeal from the Circuit Court of Cook County No. 95 L 4820 Honorable Gregory Wojkowski, Judge Presiding. Appeal from the Circuit Court of Cook County No. 96 M1 306033 Honorable Sidney A. Jones, III, Judge Presiding. Appeal from the Circuit Court of Cook County No. 93 M1 301083 Honorable James P. McCarthy, Judge Presiding. Appeal from the Circuit Court of Cook County No. 96 M1 305589 Honorable Sidney A. Jones, III, Judge Presiding. Appeal from the Circuit Court of Cook County No. 95 L 12084 Honorable Sidney A. Jones, III, Judge Presiding. Appeal from the Circuit Court of Cook County No. 96 M1 14476 Honorable Sidney A. Jones, III, Judge Presiding. Appeal from the Circuit Court of Cook County No. 95 M1 22438 Honorable Sidney A. Jones, III, Judge Presiding. Appeal from the Circuit Court of Cook County No. 95 M1 20523 Honorable Sidney A. Jones, III, Judge Presiding. Appeal from the Circuit Court of Cook County No. 96 M1 308108 Honorable Gilbert Grossi, Judge Presiding.

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

PRESIDING JUSTICE CAHILL delivered the MODIFIED ON DENIAL OF REHEARING opinion of the court

We review a trial court order that barred rejection of arbitration awards in 122 cases because the notices of rejection were not personally signed by an attorney of record. The notices were filed under Supreme Court Rule 95 (134 Ill. 2d R. 95), 1 of 10 supreme court rules (Supreme Court Rules 86 through 95) that govern mandatory arbitration of civil actions exclusively for money in an amount or of a value not in excess of the monetary limit authorized by the supreme court. 155 Ill. 2d R. 86. In most of the cases, the notices of rejection were signed in the name of a law firm entered on the rejection forms by someone who was not an attorney. In others, the notices contained the name of a lawyer but the names were entered on the forms by someone, not an attorney, who placed his or her initials above the name of the lawyer.

Relying on our decision in Bachmann v. Kent, 293 Ill. App. 3d 1078, 689 N.E.2d 171 (1997), plaintiffs filed motions to bar rejection of the awards as a sanction, some citing Supreme Court Rule 95 (134 Ill. 2d R. 95) or Supreme Court Rule 137 (155 Ill. 2d R. 137), or both. The trial court consolidated the cases for hearing and argument on the motions. All cases were set for oral argument on February 24, 1998. In the words of the trial court: "The court heard arguments first from plaintiffs' attorneys with multiple motions or unique circumstances, with all other plaintiffs' attorneys *** given the opportunity to offer any additional comments. Each of the involved defense offices then answered and plaintiffs' attorneys then replied."

On April 23, 1998, the trial court entered a memorandum opinion and order granting plaintiffs' motions. In the trial court's dispositive words: "The rejections of the awards are stricken, and judgments are entered on the awards in favor of the plaintiffs and against the defendants in the amounts of the awards, plus costs." Although the individual attorneys offered to sign the notices of rejection in response to plaintiffs' motions, the trial court, in its discretion, refused to allow them to do so. All defendants filed timely notices of appeal. For the reasons that follow, we reverse and remand.

The trial judge did not make clear in his order and memorandum opinion whether he imposed sanctions under Rule 95 or Rule 137, but he relied heavily on Bachmann. The Bachmann trial court relied on Rule 95, but also held that the signature of a non-attorney on the notice of rejection violated Rule 137. In Bachmann, the defendant failed to attend the arbitration hearing, despite the plaintiff's request in a request to produce that he do so. We affirmed the trial court in Bachmann. Bachmann, 293 Ill. App. 3d 1078, 689 N.E.2d 171.

On February 24, 1999, the chairman of the executive committee of this court conducted a prehearing conference under Supreme Court Rule 310 (134 Ill. 2d R. 310) to expedite resolution of the 122 appeals. On March 26, 1999, the executive committee entered an order finding that the issues raised in the 122 cases were similar. Eleven cases were consolidated for briefing (two more were later added), and the remaining appeals were stayed, pending resolution of the consolidated appeals or until further order of this court. We now reverse the order of the trial court and remand the consolidated and stayed appeals for dispositions consistent with this opinion.

The standard of review of sanctions imposed under a supreme court rule is whether the trial court abused its discretion. Shimanovsky v. General Motors Corp., 181 Ill. 2d 112, 120, 692 N.E.2d 286, 289 (1998). But we must first address three issues raised by the pleadings and briefs, for which the standard of review is de novo. First, in the trial court's memorandum and opinion the court suggests that the notices of rejection filed by defendants were "void" for lack of an attorney's signature, without explaining why it believed this to be so. Second, defendants argue on appeal that the underlying arbitration awards are "void" for failure of the arbitrators to execute an oath before each arbitration hearing, as required by Supreme Court Rule 87. 134 Ill. 2d R. 87. Third, some defendants argue that the trial court lacked jurisdiction over some of the cases for various reasons: In one case (No. 1-98-4040), the underlying action had been settled and dismissed more than 30 days before the motion for sanctions was filed. In others (not identified by number in the briefs), the action had proceeded to trial and judgment more than 30 days before the motion for sanctions was filed. In yet another (No. 1-98-4056), the action was on the military calendar and stayed at the time the motion for sanctions was filed. Challenges to the subject matter jurisdiction of the court and issues raised as to whether an order is void are reviewed de novo. Margaret Manor, Inc. v. Lumpkin, 279 Ill. App. 3d 776, 779, 665 N.E.2d 318, 320 (1996).

We first address the issue of whether the notices of rejection were "void."

The trial court said: "This court finds that the notices of rejection are void. Supreme Court Rule 137 is violated by the signatures having been affixed by non-attorneys. Resultantly, valid notices of rejection in the form and manner as required by Supreme Court Rule 95 have not been filed in accordance with Supreme Court Rule 93 and the rejections must be stricken. 134 Ill. 2d R. 93, 95, 137."

But later, the court went on to say:

"All parties to these motions seem to agree that this court has discretion to allow or disallow the rejection. To the extent that this is so and even if the notices of rejection are voidable and not void, this court is required to give the intended strength and purpose to the mandatory arbitration program and the administration of the court system."

What, perhaps, the trial court intended to say was that a judicial order confirming rejection of arbitration awards based on the notices could be voidable because the notices were defective for lack of an attorney's signature.

The failure to serve proper notice on a nonmoving party has no effect on the notice itself, but affects only the order entered. See 134 Ill. 2d R.104(d); Savage v. Pho, 312 Ill. App. 3d 553, 557, 727 N.E.2d 1052 (2000) (failure to serve notice under Supreme Court Rule 104(d) renders an order based on the motion voidable, not void). See also Illinois Service Federal Savings & Loan Ass'n v. Academy of St. James College Preparatory, 227 Ill. App. 3d 507, 592 N.E.2d 126 (1992) (failure to serve proper notice of judicial sale under ...


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