Appeal from the Circuit Court of Cook County. No. 2010 M1-302198 Honorable James Snyder, Judge Presiding.
The opinion of the court was delivered by: Justice R. Gordon
JUSTICE R. GORDON delivered the judgment of the court, with opinion. Presiding Justice Lampkin concurred in the judgment and opinion. Justice Garcia specially concurred, with opinion.
Â¶ 1 Plaintiff Gloria Reyes appeals the trial court's order granting defendant's motion to bar plaintiff's rejection of an arbitration award for defendant and the self-executing order that entered a sanction automatically barring plaintiff from testifying and presenting evidence if the order was not complied with on a date certain.
Â¶ 2 On this appeal, plaintiff argues that the trial court abused its discretion in barring her rejection of the arbitration award. The trial court granted defendant's "Motion to Bar Rejection of Arbitration Award and Enter Judgment on Award," claiming that plaintiff's conduct supported a bad-faith finding under Illinois Supreme Court Rule 91(b) (eff. June 1, 1993). Plaintiff argues her one-week tardiness in submitting written discovery did not prejudice or surprise defendant, since (1) the arbitration hearing took place two months after answers to written discovery, depositions, and her Supreme Court Rule 90(c) evidentiary package were given to defendant, and (2) the arbitrators made a finding that plaintiff participated in the hearing in good faith and in a meaningful manner. In addition, plaintiff, her translator*fn1 , and her attorney attended the arbitration proceedings claiming that they expected to put on evidence. For the following reasons, we reverse the barring of the arbitration award and grant plaintiff's motion to reject the award.
Â¶ 4 On August 19, 2010, plaintiff filed a complaint alleging that she sustained injuries when she tripped and fell on August 19, 2008, at a Menards store located at 2601 N. Clybourn Avenue in Chicago and that defendant Menards was negligent. After being served with process, defendant appeared, answered, and propounded written discovery and a notice to take a discovery deposition of plaintiff. The trial court set a discovery closure date of February 11, 2011.
Â¶ 5 Defendant then brought a motion to compel outstanding discovery. On February 10, 2011, the trial court ordered plaintiff: (1) to answer all written discovery by February 24, 2011, and (2) to present plaintiff Gloria Reyes for a deposition by March 24, 2011. The order was self-executing, and it stated that: "[f]ailure to comply with the specific terms of this order will result in the plaintiff being barred from testifying and presenting evidence at the arbitration and/or trial of this matter. The above stated sanction shall remain in effect until removed by Order of Court upon motion by the party against whom the sanction applies." (Emphasis in original.)
Â¶ 6 On February 10, 2011, plaintiff propounded written discovery to
defendant. On the
defendant's motion, the trial court struck as untimely:
(1) plaintiff's propounded interrogatories,
(2) plaintiff's request to produce, and (3) plaintiff's Illinois
Supreme Court Rule 213(f) (eff. Jan. 1, 2007) interrogatories.
However, the trial court did not strike plaintiff's notice to produce
pursuant to Illinois Supreme Court Rule 237 (eff. Jan. 1, 1996). In
compliance with the February 10 court order, defendant provided a
response to plaintiff's Illinois Supreme Court Rule 237 notice to
produce at the commencement of the arbitration.
Â¶ 7 On March 3, 2011, plaintiff filed her answers to written interrogatories, and a response to defendant's production request one week late and without first obtaining leave of court. Although plaintiff's written discovery was late, her deposition proceeded as scheduled and without objection from defendant on March 21, 2011. The deposition occurred within the schedule required by the February 10, 2011, discovery order. The next day, March 22, 2011, plaintiff timely sent her Supreme Court Rule 90(c) evidentiary package to defendant's attorney.
Ill. S. Ct. R. 90(c) (eff. July 1, 2008).
Â¶ 8 On May 2, 2011, plaintiff, her interpreter, and attorney were all present at the mandatory arbitration hearing. Plaintiff expected to testify and brought an interpreter since she speaks primarily Spanish. Prior to the commencement of the arbitration, defendant's attorney asked the two-person arbitration panel to bar plaintiff from testifying, arguing that the February 10, 2011, self-executing order barred plaintiff's testimony since plaintiff had filed her answers to written discovery one week after the order's deadline. Plaintiff argued that: the barring order had been cured because all discovery was filed as soon as possible, and defendant was not prejudiced or surprised because the late written discovery was still completed two months prior to the arbitration hearing; and third, defendant did not notify plaintiff that it intended to move to bar plaintiff's testimony and evidence.
Â¶ 9 The arbitration panel barred plaintiff from testifying and from offering any evidence at the arbitration hearing. At the hearing, defendant's counsel and a witness for defendant testified, and defendant presented a Supreme Court Rule 90(c) submission. The arbitrators then entered an award in favor of defendant Menard, Inc. and against plaintiff, and awarded court costs of $433.00 against plaintiff. The award included a finding that both parties participated in the hearing in good faith and in a meaningful manner.
Â¶ 10 On May 20, 2011, the parties presented opposing motions in the trial court. Plaintiff moved to vacate the February 10, 2011, barring order and to vacate the arbitration award. Defendant moved to bar plaintiff from rejecting the arbitration award under the bad-faith participation provision of Supreme Court Rule 91(b) (eff. June 1, 1993). Supreme Court Rule 91(b) permits a trial court to bar an arbitration participant from rejecting an award if the participant failed to participate in good faith. The trial court heard arguments and granted defendant's motion to bar plaintiff from rejecting the arbitration award and denied plaintiff's motion to reject the award. The trial court found that defendant's motion to bar was appropriate because plaintiff did not "have the barring order vacated and that the arbitration proceeded with the barring order in effect as a result thereof." The trial court then entered judgment on the arbitration award in favor of defendant.
Â¶ 11 On June 17, 2011, plaintiff filed a motion to reconsider, and on August 9, 2011, the trial court heard arguments and denied plaintiff's motion, finding:
"[i]n light of the arguments made and the facts as I understand them, I'm happy to reconsider the matter non reconsideration [sic] based on the plaintiff's argument that they made an affirmative decision not to seek to have the barring order lifted. That was done as a matter of choice, not inadvertence or anything like that. The motion to reconsider is denied and * * * the judgment on the award to stand."
On September 6, 2011, plaintiff filed a timely notice of appeal, and this appeal followed.
Â¶ 13 I. Standard of Review
Â¶ 14 A trial court's decision barring a party from rejecting an arbitration award is subject to an abuse of discretion standard of review. Campuzano v. Peritz, 376 Ill. App. 3d 485, 487 (2007) (citing Zietara v. DaimlerChrysler Corp., 361 Ill. App. 3d 819, 822 (2005)). An abuse of discretion occurs where the trial court's decision is arbitrary or exceeds the bounds of reason. Nationwide Mutual Insurance Co. V. Kogut, 354 Ill. App. 3d 1, 4 (2004). To warrant such deference, the sanction decision must be factually and legally informed and reasoned. Cirrincione v. Westminster Gardens Ltd. Partnership, 352 Ill. App. 3d 755, 761 (2004). To the extent that our decision turns on the interpretation of Supreme Court Rule 91(b), we apply a de novo review to the interpretation. Zietara, 361 Ill. App. 3d at 822. 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 (2011).
Â¶ 15 II. Supreme Court Rule 91(b)
Â¶ 16 Parties to a mandatory arbitration have a presumptive right to reject an arbitration award unless they are subject to sanctions barring rejection. Anderson v. Pineda, 354 Ill. App. 3d 85, 87 (2004). Supreme Court Rule 91(b) allows a trial court to bar a party from rejecting an award if the party failed to participate in good faith and in a meaningful manner. The text of the rule provides:
"(b) 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." Ill. Sup. Ct. R. 91. (eff. June 1, 1993).
Â¶ 17 To interpret this rule, we must "ascertain and give effect to the
true intent" of its drafters. Paris v. Feder, 179 Ill. 2d 173, 177
(1997). The best evidence of intent is the language used in
the rule itself, which must be given its plain and
ordinary meaning. Paris, 179 Ill. 2d at 177. In reviewing the issue of
barring rejection of an arbitration award, we have previously examined
the drafters' intent ...