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Campuzano v. Peritz

September 28, 2007

LYDA CAMPUZANO, PLAINTIFF-APPELLEE,
v.
HOWARD PERITZ AND REVELIE PERITZ, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County No. 04 M 1301797. Honorable Moira S. Johnson, Judge Presiding.

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

Published opinion

Defendants Howard and Revelie Peritz appeal a circuit court order barring them under Supreme Court Rule 91(b) (145 Ill. 2d R. 91(b)) from rejecting an arbitration award in favor of plaintiff Lyda Campuzano. Defendants challenge the appropriateness of the sanction and the constitutionality of Rule 91(b). We affirm.

The parties were involved in a car accident. Plaintiff filed a negligence action alleging defendants were at fault. The case was assigned to mandatory arbitration and a discovery deadline was set for November 29, 2004. Plaintiff filed written discovery requests and notices to take defendants' depositions. Defendants did not respond to the discovery requests, prompting plaintiff to file a motion to compel. On October 25, 2004, the trial court entered a written order granting plaintiff's motion to compel and ordering defendants to appear for depositions by November 15, 2004, and answer plaintiff's interrogatories by November 8, 2004 (discovery order). The trial court wrote that failure to comply with discovery would result in an order barring defendants from testifying or presenting evidence at the arbitration and at trial. Defendant Howard, who was driving the car that hit plaintiff, appeared for his deposition on November 11, 2004. Defendant Revelie did not appear at her deposition. Both defendants failed to answer plaintiff's interrogatories.

An arbitration hearing was held on April 5, 2005. Both defendants were present and admitted negligence. The arbitrators noted the defendants were prevented from presenting evidence for failure to comply with discovery but concluded that all parties participated in the arbitration in good faith. An award was entered for plaintiff and against Howard.

On June 22, 2005, defendants moved in the trial court to vacate the discovery order sanctioning their failure to comply with plaintiff's discovery requests. Plaintiff responded by arguing the sanction was appropriate and moving to bar defendants' rejection of the arbitration award under Rule 91(b). Plaintiff argued defendants failed to participate at the arbitration in a meaningful manner due to the discovery order, which barred them from presenting evidence at the arbitration. The trial court denied defendants' motion to vacate, granted plaintiff's motion to bar rejection of the award and entered judgment on the award. Defendants appeal.

A trial court's decision to bar a party from rejecting an arbitration award is generally reviewed for an abuse of discretion. Zietara v. DaimlerChrysler Corp., 361 Ill. App. 3d 819, 822, 838 N.E.2d 76 (2005). Where the decision turns solely on a question of law, de novo review will apply. Zietara, 361 Ill. App. 3d at 822.

Rule 91(b) reads:

"Good-Faith Participation. All parties to the arbitration hearing must participate in the hearing in good faith and in a meaningful manner. If a panel of arbitrators unanimously finds that a party has failed to participate in the hearing in good faith and in a meaningful manner, the panel's finding and factual basis therefor shall be stated on the award. Such award shall be prima facie evidence that the party failed to participate in the arbitration hearing in good faith and in a meaningful manner and a court, when presented with a petition for sanctions or remedy therefor, may order sanctions as provided in Rule 219(c), including, but not limited to, an order debarring that party from rejecting the award, and costs and attorney fees incurred for the arbitration hearing and in the prosecution of the petition for sanctions, against that party." 145 Ill. 2d R. 91(b).

The rule requires that parties participate in an arbitration hearing in good faith by subjecting the case to the type of adversarial testing that would be expected at a trial. Walker v. Lewis, 352 Ill. App. 3d 952, 956, 817 N.E.2d 928 (2004). A party fails to participate in good faith where its actions amount to a deliberate disregard for the court and the rules. Walker, 352 Ill. App. 3d at 956.

Defendants first argue debarment is inappropriate here because the arbitrators expressly found that the parties acted in good faith and there is no transcript of the arbitration hearing for the trial court to conclude otherwise. Defendants cite West Bend Mutual Insurance Co. v. Herrera, 292 Ill. App. 3d 669, 674, 686 N.E.2d 645 (1997) (discouraging trial courts from finding bad faith where there has been no such finding by the arbitrators and where the trial court does not have the benefit of a transcript from the arbitration hearing); see also Walker, 352 Ill. App. 3d at 959 (citing West Bend for the same proposition); Ruback v. Doss, 347 Ill. App. 3d 808, 815, 807 N.E.2d 1019 (2004) (same). Plaintiff responds that those cases are distinguishable on the ground that defendants here failed to comply with the trial court's discovery order and were barred from testifying or presenting other evidence at the arbitration hearing as a result. Plaintiff cites Lopez v. Miller, 363 Ill. App. 3d 773, 844 N.E.2d 1017 (2006).

The defendant in Lopez was barred from testifying or presenting other evidence at the arbitration hearing for failing to comply with discovery. Lopez, 363 Ill. App. 3d at 775. Both parties appeared at the arbitration, and although the defendant was barred from presenting evidence, the arbitrators found he participated in good faith. Lopez, 363 Ill. App. 3d at 776. An award was entered for the plaintiff and the defendant moved to reject the award. Lopez, 363 Ill. App. 3d at 776. The plaintiff moved to bar rejection under Rule 91(b) on the ground the defendant failed to comply with the trial court's order compelling him to be deposed. Lopez, 363 Ill. App. 3d at 776. The trial court granted the plaintiff's motion and barred the defendant from rejecting the award. Lopez, 363 Ill. App. 3d at 776-77. The appellate court affirmed, saying the "[d]efendant's failure to rectify his deficient discovery participation during the four months between the trial court's sanction order and the arbitration hearing resulted in his debarment of rejecting the arbitration award." Lopez, 363 Ill. App. 3d at 779. The court concluded the "defendant created his own problems by failing to comply with discovery and then further added to those problems by failing to take any action to correct the sanctions imposed against him." Lopez, 363 Ill. App. 3d at 779. See also Anderson v. Pineda, 354 Ill. App. 3d 85, 89, 819 N.E.2d 1157 (2004) ("a litigant who fails to modify, vacate, or comply with sanctions imposed due to a discovery violation that occurs outside of the arbitration hearing may be incapable of participating in the arbitration in a meaningful manner"); Glover v. Barbosa, 344 Ill. App. 3d 58, 800 N.E.2d 519 (2003) (the defendant's failure to comply with prearbitration discovery order and to move to modify or vacate the trial court order preventing her from testifying or presenting evidence at arbitration hearing were sufficient grounds to bar the defendants' later rejection of the award).

Defendants argue Lopez is distinguishable because defendant Howard was deposed before the arbitration hearing. Defendants also maintain that plaintiff could have obtained answers to written discovery through other means. Defendants overlook the rationale for debarment. They failed to comply with the trial court's discovery order. As a result, they were barred from testifying or presenting other evidence at the arbitration hearing and could not participate in a meaningful manner. The duty was on defendants to comply with all, not part, of the trial court's order.

Defendants argue their failure to comply with the trial court's discovery order did not prejudice plaintiff and should not have resulted in debarment. Again, the rule is not concerned with the prejudice to one party caused by another party's failure to comply with discovery. The point of Rule 91(b) is to "prevent the abuse of the arbitration process and to uphold the integrity of the arbitration process." State Farm Insurance Co. v. Kazakova, 299 Ill. App. 3d 1028, 1033, 702 N.E.2d 254 (1998), citing 145 Ill. 2d R. 91(b), Committee Comments, at ...


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