Appeal from the Circuit Court of Cook County. No. 00 M1 304837 Honorable Patrick F. Lustig, Judge Presiding.
The opinion of the court was delivered by: Justice Cahill
We review the scope of a trial court's power to impose a debarment sanction under Supreme Court Rule 219(c) (166 Ill. 2d R 219(c)). In this postarbitration hearing the trial court made a bad-faith finding under Rule 91(b) (145 Ill. 2d R. 91(b)). The arbitrators had not made a bad-faith finding. Earlier the defendant had been barred from offering evidence as a sanction for failure to comply with discovery orders. We conclude that a trial court may debar a party from rejecting an arbitration award based on a bad-faith finding under Rule 91(b) (145 Ill. 2d R. 91(b)) under these circumstances, despite the absence of a bad-faith finding by the arbitration panel.
Plaintiff filed a complaint on August 24, 2000, to recover for injuries suffered in a November 13, 1999, traffic accident. Defendant answered the complaint on November 21, 2000. Defendant later failed to comply with written discovery. Plaintiff filed a motion to compel on March 2, 2001. An agreed order entered on March 16, 2001, required defendant to answer all written discovery by March 30 and appear for a deposition on April 6, 2001. The order also provided that defendant would be barred from testifying and presenting evidence at arbitration and/or trial if she failed to comply.
Defendant filed an answer to interrogatories on March 30, 2001. Plaintiff filed a motion to strike the answers on April 6, 2001. Plaintiff argued that defendant did not sign the answers as required and answered only 12 of 24 interrogatories propounded. The trial court granted plaintiff's motion to strike on April 18, 2001. The April 18 order also imposed the sanction for failure to comply with discovery set out in the March 16 order.
A mandatory arbitration hearing was held on October 3, 2001. Defendant's attorney presented an opening and closing argument and cross-examined plaintiff as to the facts of the accident and the contents of her Supreme Court Rule 90(c) packet (166 Ill. 2d R. 90(c)). In compliance with the April 18 order, defendant offered no evidence and did not testify. Plaintiff asked for an award of $19,000 and a finding of bad faith against defendant under Rule 91(b) (R. 145 Ill. 2d R 91(b)). The arbitration panel awarded her $8,500 plus costs. A bad-faith finding was not included in the award.
Plaintiff filed an anticipatory motion to bar defendant from rejecting the arbitrators' award on October 9, 2001. Plaintiff argued that defendant's failure to comply with prearbitration orders causing her to be barred from presenting testimony or evidence at the hearing amounted to a failure to meaningfully participate in the arbitration hearing under Rule 91(b) (145 Ill. 2d R. 91(b)). Defendant filed a rejection of the arbitration award on October 17, 2001. Defendant also filed a response to plaintiff's motion, but a copy is not included in the record before us. Plaintiff's reply reveals that defendant argued lack of prejudice and also that making opening and closing statements and cross-examining plaintiff at the hearing satisfied the meaningful participation requirement.
The trial court conducted a hearing on plaintiff's motion to bar on December 27, 2001. There is no transcript of the hearing, but a certified bystander's report is included in the record. The trial court heard the arguments of counsel which tracked the briefs filed. No evidence was taken. The trial court granted the motion to bar based on defendant's failure to participate in the arbitration hearing in good faith and imposed the debarment sanction under Supreme Court Rule 219(c) (166 Ill. 2d R. 219(c)). The trial court then entered judgment on the arbitration award. This appeal followed.
Defendant challenges the trial court's order barring her from rejecting the arbitration award and contends that: (1) defendant did not fail to participate in good faith; (2) defendant subjected the case to the same degree of adversarial testing required at trial; (3) debarment here improperly sanctions conduct outside of the arbitration hearing; (4) the trial court cannot make a bad-faith finding relating to defendant's conduct at the arbitration hearing; and (5) the sanction was too severe.
We will not disturb a trial court's decision to bar a party from rejecting an arbitration award absent an abuse of discretion. Hinkle v. Womack, 303 Ill. App. 3d 105, 110, 707 N.E.2d 705 (1999). A trial court abuses its discretion when its decision is arbitrary, fanciful or unreasonable. Diamond v. United Food & Commercial Workers Union Local 881, 329 Ill. App. 3d 519, 526, 768 N.E.2d 865 (2002); People v. Illgen, 145 Ill. 2d 353, 364, 583 N.E.2d 515 (1991).
Defendant first claims that she did not fail to meaningfully participate in the arbitration hearing but was merely complying with an earlier order that barred her from testifying. She claims to have subjected the case to the same adversarial testing that would have been required at trial. Defendant concludes that her debarment "effectively punishes [defendant] twice for the same act."
Defendant's argument is an unpersuasive attempt to minimize the negative inferences raised by her prearbitration conduct. Defendant's claim, that she cannot be penalized for her limited participation at the arbitration hearing where that limited participation was in compliance with a trial court's earlier sanction order, implies that defendant has been innocently caught in an unfortunate Catch-22 created by the interplay between the supreme court rules governing sanctions and mandatory arbitration. But defendant's predicament is of her own making.
Defendant failed to comply with discovery, prompting a motion to compel. Defendant then agreed to comply with written discovery by March 30 and give her deposition on April 6. Defendant's "compliance" consisted of half-answered, unsigned and unverified answers to interrogatories. The trial court granted a motion to strike and barred defendant from testifying and producing evidence at trial or arbitration. That order was entered in April. Arbitration was held in October, six months later. Defendant made no attempt in those six months to comply with discovery or modify or vacate the April 18 order to enable her to participate fully at arbitration or trial. Defendant instead appeared at the October arbitration hearing, engaged in minimal participation, rejected an unfavorable award, and now argues that her rejection cannot be barred based on a lack of good faith. We believe that defendant's reasoning subverts the mandatory arbitration system. Our analysis of similar facts in Eichler v. Record Copy Services, 318 Ill. App. 3d 790, 742 N.E.2d 1245 (2000), is instructive and underscores our conclusion.
The plaintiff in Eichler was barred from testifying or presenting evidence at an arbitration hearing for an earlier failure to comply with discovery. The arbitrators entered an award in favor of the defendants. Eichler, 318 Ill. App. 3d at 791. The plaintiff was then debarred from rejecting the award based on her failure to participate in good faith under Rule 91(b). Eichler, 318 Ill. App. 3d at 791. As defendant argues here, the plaintiff claimed in Eichler that she was ...