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Sean Jordan v. Hasib Bangloria

December 30, 2011

SEAN JORDAN,
PLAINTIFF-APPELLEE,
v.
HASIB BANGLORIA,
DEFENDANT-APPELLANT, (PARRILLO, WEISS & O'HALLORAN, )
APPELLANT.



Appeal from the Circuit Court of Cook County. No. 10 M2 0085 Honorable Roger G. Fein, Judge Presiding.

The opinion of the court was delivered by: Justice Cunningham

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Quinn and Justice Connors concurred in the judgment and opinion.

OPINION

¶ 1 This appeal arises from a September 2, 2010 order entered by the circuit court of Cook County that debarred the defendant's rejection of an arbitration award, assessed attorney fees under Illinois Supreme Court Rule 91(b) (eff. June 1, 1993) for the defendant's failure to participate in the arbitration in good faith, and assessed additional attorney fees under Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994) for frivolous objections to the plaintiff's request to admit facts. The defendant filed a motion to reconsider the trial court's ruling. The trial court denied the defendant's motion to reconsider. On appeal, the defendant argues that: (1) the trial court erred in entering judgment on the arbitration award because the court did not give 60 days' written notice of the arbitration hearing;

(2) the trial court erred in debarring his rejection of the arbitration award and assessing attorney fees for failure to participate in the arbitration in good faith; and (3) the trial court erred in assessing sanctions for his responses and objections to the plaintiff's request to admit. For the following reasons, we affirm the judgment of the circuit court of Cook County.

¶ 2 BACKGROUND

¶ 3 On January 14, 2010, plaintiff-appellee Sean Jordan (Sean) filed a personal injury and property damage lawsuit in the circuit court of Cook County against defendant-appellant Hasib Bangloria (Hasib), as a result of an automobile accident that occurred on January 16, 2009. On January 27, 2010 Parrillo, Weiss & O'Halloran (defense counsel), filed their appearance and a jury demand on behalf of Hasib. Around February 4, 2010, Sean served Hasib, through Parrillo, Weiss & O'Halloran, with a request to admit facts. On March 2, 2010, Hasib served Sean with written objections to the request to admit. On March 30, 2010, the trial court entered an order closing discovery as of April 30, 2010, and transferred the case to the mandatory arbitration calendar. On April 9, 2010, Sean filed a motion requesting the trial court to overrule Hasib's objections to his request to admit. On May 3, 2010, Sean served Parrillo, Weiss & O'Halloran with Supreme Court Rule 90 documents, relating to the conduct of the mandatory arbitration hearing. A June 2, 2010 order overruled Hasib's objections, ordered Hasib to respond, and indicated that an arbitration hearing set for June 9, 2010 would stand. Prior to the June 2, 2010, order, there is nothing in the record that would indicate Hasib received any notice of the arbitration hearing date. In a separate order that day, Hasib was ordered to appear for a deposition prior to June 9, 2010. The order further indicated that the arbitration hearing was set for June 9, 2010. At that time, the plaintiff's attorneys were advised that the defense firm, Parrillo, Weiss & O'Halloran, had first located Hasib within the "last few days."

¶ 4 Hasib never appeared for his deposition, nor did he appear for the arbitration hearing in response to Sean's notice to appear. On June 9, 2010, an arbitration hearing was held and defense counsel was present. An award of damages was entered in favor of Sean and against Hasib in the amount of $5,000 with no costs. The arbitrators did not make a finding that Hasib and defense counsel failed to participate in good faith. On June 23, 2010, Hasib filed a rejection of the award. On July 21, 2010, Sean filed a motion to "quash rejection of arbitration award." The motion also sought the assessment of attorney fees against defense counsel for bad faith in failing to produce Hasib at the arbitration hearing pursuant to Sean's notice to produce, for Hasib's failure to appear for the deposition, and for Hasib's frivolous objections to Sean's request to admit. Sean also filed a separate motion for assessment of attorney fees under Illinois Supreme Court Rule 137, claiming that Hasib's objections to the request to admit were frivolous. On September 2, 2010, the trial court granted Sean's motion to bar the rejection of the arbitration award, entered judgment on the award, and assessed the sum of $3,375 for attorney fees against Hasib and defense counsel. The trial court found that defense counsel did not participate in good faith "in connection with and at the arbitration hearing, prior thereto, and thereafter." The trial court also assessed $3,175 in attorney fees under Supreme Court Rule 137 against defense counsel only, finding that the objections to Sean's request to admit were "frivolous."

¶ 5 On September 29, 2010, Hasib filed a motion to reconsider supported by two affidavits. One affidavit was from Cook County Arbitration Administrator Kimberly Atz O'Brien, which stated that written notice of the arbitration hearing was only mailed to the plaintiff's attorneys. The second affidavit was from Steven Harris, an attorney with defense counsel, which stated that he appeared in court in this case on June 2, 2010, that the court stated the arbitration date would stand, and that Mr. Harris did not then realize that defense counsel had not been notified of the arbitration hearing.

¶ 6 On November 12, 2010, Hasib's motion to reconsider was denied. The trial court found that defense counsel "ignore[d] the professional responsibility of his law firm to keep on top of scheduled dates for filings and appearances in Court or in connection with arbitration hearings." On November 19, 2010, Hasib and defense counsel filed a notice of appeal. On November 30, 2010, Hasib and defense counsel filed an amended notice of appeal.

¶ 7 ANALYSIS

¶ 8 The parties disagree on what standard of review should be utilized by this court. Generally, a trial court's decision to bar rejection of an arbitration award is reviewed for an abuse of discretion. Williams v. Dorsey, 273 Ill. App. 3d 893, 901, 652 N.E.2d 1286, 1292 (1995). Abuse of discretion occurs when the trial court rules arbitrarily or when its ruling exceeds the bounds of reason. Id. However, a trial court's ruling that depends solely on the court's construction of a statute or a supreme court rule is reviewed de novo. Paul H. Schwendener, Inc. v. Larrabee Commons Partners, 338 Ill. App. 3d 19, 28, 787 N.E.2d 192, 200 (2003). De novo consideration means we perform the same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578, 948 N.E.2d 132, 146 (2011).

¶ 9 Hasib and defense counsel argue that the trial court erred in debarring the rejection of the arbitration award and in entering judgment because the court did not give 60 days' written notice of the hearing. Illinois Supreme Court Rule 88 (eff. June 1, 1987) requires that "not less than 60 days' notice [of an arbitration hearing] shall be given to the parties or their attorneys of record." Illinois Supreme Court Rule 91(a) (eff. June 1, 1993) provides that "[t]he arbitration hearing shall proceed in the absence of any party who, after due notice, fails to be present."

¶ 10 We find Juszczyk v. Flores, 334 Ill. App. 3d 122, 777 N.E.2d 454 (2002), instructive on this issue. In Juszczyk, we found that the failure to provide at least 60 days' notice of an arbitration hearing date renders a judgment on an arbitration award voidable. Id. at 125-26, 777 N.E.2d at 457. A previous appellate court decision, in Ratkovich v. Hamilton, 267 Ill. App. 3d 908, 914, 642 N.E.2d 834, 838 (1994), that found such a judgment to be void is not followed because it is in direct conflict with our Illinois Supreme Court's decision holding that only orders entered by a court lacking personal or subject matter jurisdiction are void. "Both Illinois Appellate and Supreme Court case law have consistently held that a judgment or order is void [only] where it is entered by a court or agency lacking personal jurisdiction, subject-matter jurisdiction, or the inherent power to enter the particular judgment or order, or where the judgment or order is procured by fraud." Juszczyk, 334 Ill. App. 3d at 125, 777 N.E.2d at 456 (citing Johnston v. City of Bloomington, 77 Ill. 2d 108, 112, 395 N.E.2d 549, 550 (1979), People v. Davis, 156 Ill. 2d 149, 155, ...


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