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Rodriguez v. Hushka

August 31, 2001

ROBERTO RODRIGUEZ, INDIV. AND NEXT FRIEND OF ROBY RODRIGUEZ, A MINOR, PLAINTIFFS-APPELLANTS AND DEFENDANTS
v.
CHARLES HUSHKA AND SAFECO INSURANCE, A/S/O CHARLES HUSHKA, DEFENDANTS-APPELLEES AND PLAINTIFFS



The opinion of the court was delivered by: Justice O'mara Frossard

UNPUBLISHED

Appeal from the Circuit Court of Cook County Honorable James P. McCarthy, Judge Presiding

Plaintiffs, Roberto Rodriguez, individually and on behalf of his minor child, Roby Rodriguez, brought this personal injury lawsuit against defendant Charles Hushka. The case proceeded to mandatory arbitration, and the arbitrators ruled in favor of Hushka. Within 30 days of this decision, plaintiffs filed a notice of rejection of the arbitration award but did not pay any fees. Plaintiffs' counsel presented to the clerk of the circuit court a copy of a signed certification that he was a civil legal services provider (C.L.S.P.) in support of the motion to waive the $200 fee in connection with filing the written notice of rejection. The clerk accepted plaintiffs' rejection of the arbitration award and stamped it "C.L.S.P." Defendants moved to strike plaintiffs' rejection of the arbitration award because of plaintiffs' failure to pay the fee of $200. The trial court granted the motion and entered judgment on the award. On appeal, plaintiffs argue that the trial court erred in holding that plaintiffs were required to pay the $200 fee in connection with filing a written notice of rejection of the arbitration award because plaintiffs' counsel filed a C.L.S.P. certification in compliance with the fee waiver provisions of section 5-105.5 of the Code of Civil Procedure. (735 ILCS 5/5-105.5 (West 2000)).

I. BACKGROUND

Plaintiffs filed this lawsuit on November 30, 1999. Plaintiffs' complaint alleged that on January 28, 1998, Hushka negligently drove his vehicle and collided with plaintiffs' vehicle, causing injuries to plaintiffs. In addition to the complaint, plaintiffs' counsel filed a signed certification that he was "a civil legal services provider." In the certification, which is entitled "Representation By Civil Legal Services Provider," plaintiffs' counsel indicated as follows:

"I Adam D. Ingber, a civil legal services provider have determined that Roberto Rodriguez is eligible to have all fees relating to filing, appearing, transcripts on appeal, and service of process waived because his income is 125% or less of the current federal poverty income guidelines, or he is otherwise eligible to receive civil legal services under the Legal Services Corporation Act."

The clerk of the circuit court waived plaintiffs' filing fees and stamped the certification and the complaint "C.L.S.P." The jury demand made by plaintiffs was similarly filed and stamped "C.L.S.P." Before mandatory arbitration of plaintiffs' case, the trial court consolidated plaintiffs' case with a property damage claim brought by Hushka's subrogee, Safeco Insurance Co. (Safeco). That lawsuit arose out of the same motor vehicle accident. The consolidated cases proceeded to arbitration. On August 15, 2000, the arbitrators ruled against plaintiffs on the claim against Hushka and in favor of Safeco in the amount of $6,108.06. On that same day, plaintiffs filed their written notice of rejection of the arbitration award. A copy of the "C.L.S.P." affidavit was provided to the clerk of the circuit court. The clerk stamped the front and back of the rejection notice "C.L.S.P." and filed it. Plaintiffs also filed a motion to waive the $200 fee in connection with filing the written notice of rejection of the arbitration award and a motion to amend their complaint. On September 7, 2000, the trial court continued both motions to October 6, 2000, the day the case was set for judgment on the arbitration award call. On October 6, 2000, the court entered a trial room assignment order. The court also set a briefing schedule on defendants' unfiled motion to strike plaintiffs' rejection of the arbitration award. Defendants' motion was then filed on October 10, 2000. Defendants argued in the motion that plaintiffs' failure to pay a $200 fee made plaintiffs' rejection of the arbitration award void. Neither party filed a brief.

On October 31, 2000, the court struck plaintiffs' rejection of the arbitration award and entered judgment on the arbitration award in favor of defendants. The court in the judgment on award of arbitration stated: "The rejection is stricken upon motion and the 1307 assignment is stricken." This appeal followed.

II. APPLICATION OF SECTION 5-105.5

Plaintiffs argue that the trial court failed to apply section 5-105.5 of the Code of Civil Procedure (735 ILCS 5/5-105.5 (West 2000)). This section, in part, (b), states as follows:

"When a party is represented in a civil action by a civil legal services provider, all fees and costs relating to filing, appearing, transcripts on appeal, and service of process shall be waived without the necessity of a motion for that purpose *** provided that (i) a determination has been made by the civil legal services provider that the party is indigent and (ii) an attorney's certification that that determination has been made is filed with the clerk of the court along with the complaint, the appearance, or any other paper that would otherwise require payment of a fee." (Emphasis added.) 735 ILCS 5/5-105.5(b) (West 2000).

The interpretation of a statute is a question of law that we review de novo. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205 (1998). In construing a statue, the statutory language is the best indication of the legislature's intent, and unambiguous terms should be given their plain and ordinary meaning. Kunkel v. Walton, 179 Ill. 2d 519, 533-34 (1997).

Pursuant to Supreme Court Rule 86 (155 Ill. 2d R. 86), the Code of Civil Procedure is applicable to mandatory arbitration proceedings. Rule 86 provides as follows:

"Notwithstanding that any action, upon filing, is initially placed in an arbitration track or is thereafter so designated for hearing, the provisions of the Code of Civil Procedure and the rules of the Supreme Court shall be applicable to its proceedings ...


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