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Taxman v. First Illinois Bank of Evanston

December 11, 2002

SEYMOUR TAXMAN AND DONALD R. MAZZONI, PLAINTIFFS-APPELLEES,
v.
FIRST ILLINOIS BANK OF EVANSTON, NOT INDIVIDUALLY, BUT AS TRUSTEE UNDER TRUST AGREEMENT DATED SEPTEMBER 30, 1958, AND KNOWN AS TRUST NUMBER 1151, AND DANIEL F. MCCARTHY, NOT INDIVIDUALLY, BUT AS DIRECTING BENEFICIARY OF THE TRUST AGREEMENT DATED SEPTEMBER 30, 1958, AND KNOWN AS TRUST NO. 1151, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County Honorable Lester Foreman, Judge Presiding.

The opinion of the court was delivered by: Justice Hoffman

The defendants, the First Illinois Bank of Evanston, as trustee under a trust agreement dated September 30, 1958, and known as Trust Number 1151 (hereinafter referred to as the "Trust"), and Daniel F. McCarthy, appeal from an order of the circuit court of Cook County which: denied their motion to vacate an arbitration award in favor of the plaintiffs, Seymour Taxman and Donald R. Mazzoni; confirmed the award; and entered judgment thereon. For the reasons which follow, we affirm.

The material facts giving rise to this litigation are not in dispute. The Trust entered into an installment agreement with the plaintiffs pursuant to which the plaintiffs were to purchase from the Trust an improved parcel of real property, commonly known as 9933 North Lawler Avenue in Skokie, Illinois. The agreement is dated May 10, 2000, and was executed on behalf of the Trust by Daniel F. McCarthy in his capacity as "Directing Beneficiary." The agreement was modified by a letter also dated May 10, 2000, which provided, in part, that any disagreements which might arise between the parties during the term of the agreement would be resolved through binding arbitration.

In May of 2001, a dispute arose between the parties concerning the provisions of the agreement relating to the Trust's obligations to furnish certain documents to the plaintiffs and pay the plaintiffs a monthly co-management fee. On June 19, 2001, the plaintiffs filed a demand for arbitration with the American Arbitration Association (AAA).

On November 7, 2001, James A. Campion, the AAA arbitrator assigned to resolve the dispute, (hereinafter referred to as the "arbitrator") conducted a preliminary hearing by telephone and, on the following day, entered a scheduling order reflecting that the parties had agreed, among other things, that the hearing of the matter would commence on January 20, 2002. By that same order, the arbitrator directed that, on or before December 28, 2001, the parties would file a stipulation of uncontested facts and a disclosure of all witnesses reasonably expected to be called to testify at the hearing, and exchange copies of all exhibits, schedules, summaries, diagrams and charts to be used at the hearing. The order also provided that all deadlines would be strictly enforced and that, after the passage of the deadline, a party would be unable to file a motion except with the arbitrator's permission upon a showing of good cause.

On December 18, 2001, the plaintiffs served a notice for the taking of McCarthy's deposition on December 26, 2001. On January 3, 2002, the plaintiffs filed a request for sanctions with the arbitrator, asserting that the defendants had failed to provide discovery materials, McCarthy had failed to attend his scheduled deposition, and the defendants had failed to cooperate in the preparation of a stipulation of facts.

By a notice dated January 14, 2002, the arbitrator rescheduled the arbitration hearing to commence on February 1, 2002. It also appears that the arbitrator extended the discovery cutoff to January 30, 2002. On January 15, 2002, the plaintiffs served a notice for the taking of McCarthy's deposition on January 28, 2002.

On January 22, 2002, the defendants filed a motion to extend the discovery cutoff date and to continue the scheduled hearing. In support of their request for a continuance, the defendants alleged as follows:

"3. Subsequent to the parties teleconference with the arbitrator on December 14, 2001, Respondent Daniel McCarthy became involved in negotiations with a third party concerning the disposition of a substantial unrelated land holding that he owns. The land in question constitutes a substantial portion of McCarthy's current assets, and the disposition of the land may bear a material impact upon McCarthy's personal estate planning interests. Respondent McCarthy is currently 83 years old.

4. Because of Mr. McCarthy's advanced age and the potential impact of the transaction question upon his estate planning, Mr. McCarthy is unable to devote the time and attention required in order to sit for his deposition before January 30, 2002[,] and to thereafter prepare for the February 1, 2002[,] arbitration hearing.

5. In order to address his attention to the above-referenced competing land transaction and to advance that matter to a point where he can concentrate on the issues raised in the pending arbitration claim, Mr. McCarthy requires an additional month's time."

The arbitrator denied the defendants' request for a continuance, and the arbitration hearing proceeded as scheduled on February 1, 2002. Although the record before us does not contain a transcript of the proceedings before the arbitrator on that date, we know from various pleadings contained in the record that the plaintiff Taxman and the defendant McCarthy both testified at the arbitration hearing. On February 11, 2002, the arbitrator entered an award in favor of the plaintiffs which provides, among other things, that the plaintiffs are entitled to recover $31,333.33 from the defendants and the defendants are required to deliver certain specified documents to the plaintiffs.

On March 5, 2002, the plaintiffs commenced the instant action with the filing of a pleading entitled "Motion for Confirmation and Judgment for Arbitration Award." The action was filed pursuant to sections 11 and 14 of the Uniform Arbitration Act (Act) (710 ILCS 5/11, 14 (West 2000)) and requested that the circuit court confirm the arbitrator's February 11, 2002, award and enter judgment against the defendants in conformity with that award. On April 29, 2002, the defendants filed a motion pursuant to section 12(a)(4) of the Act (710 ILCS 5/12(a)(4) (West 2000)), seeking an order vacating the arbitration award by reason of the arbitrator's denial of their motion for a continuance. On May 10, 2002, the trial court denied the defendants' motion to vacate the arbitration award, granted the plaintiffs' motion to confirm the award, and entered judgment in favor of the plaintiffs in conformity with the award. Thereafter, the defendants filed a timely notice of appeal.

In urging reversal of the May 10, 2002, order, the defendants argue that the trial court erred in denying their motion to vacate the arbitrator's award. They assert that they established good cause for a continuance of the February 1, 2002, arbitration hearing and that the arbitrator erroneously refused to postpone that hearing. In support of their argument, ...


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