No. 1-02-1074

ROSIE GIVENS and TRENIKA SMITH,			)	Appeal from the

								)	Circuit Court

			Plaintiffs-Appellees,			)	of Cook County.

								)

		v.						)	No. 01 M1 301166

								)

ROSENDO RENTERIA, MARTIN RENTERIA,		)

and MARIA RENTERIA,	 				)	Honorable

								)	James P. McCarthy,

			Defendants-Appellants.		)	Judge Presiding.

	JUSTICE REID delivered the opinion of the court:

	Following the entry of an order by the trial court barring defendants from rejecting an

arbitration award and the subsequent entry of judgment on that award, plaintiffs brought the

instant appeal.  For the reasons that follow, we affirm the judgment of the trial court.

	BACKGROUND

	The underlying lawsuit in this matter is a personal injury and property damage action

relating to a traffic accident.  The matter was scheduled for arbitration.  The parties appeared in

person and by counsel at the arbitration hearing.

	Martin and Maria Renteria owned the vehicle being driven by Rosendo Renteria.  The

complaint alleges that the Renteria vehicle hit both the rear of a vehicle owned and operated by

Rosie Givens and the rear of a vehicle owned and operated by Trenika Smith.  The Renterias filed

an appearance, answer and jury demand with leave of court.  

	On October 19, 2001, defense counsel received plaintiffs’ Supreme Court Rule 90(c)

documents.  166 Ill. 2d R. 90(c).  Thereafter, plaintiffs received leave of court to supplement the

Supreme Court. Rule 90(c) package.  During the arbitration, when a dispute arose regarding defense counsel’s objection to the Rule 90(c) documents, the arbitrators indicated they would

take the objection under advisement.  The arbitrators instructed the parties to proceed.  Defense

counsel pressed the arbitrators for an immediate ruling on the objection.  In an immediate ruling,

the arbitrators overruled the objection, again ordering the parties to proceed.  Defense counsel

refused, despite indications that the arbitrators believed the defense’s refusal was contumacious. 

Defense counsel was insistent upon learning the basis for the arbitrators’ ruling.

	There is some dispute as to what happened next.  According to the defense, the arbitrators

then announced they were adjourning the hearing.  According to the plaintiffs, the arbitrators

temporarily recessed  the hearing so they could consult with a circuit court judge.  Plaintiffs argue

that at no time did the arbitrators terminate the hearing or instruct the parties to leave.  The

arbitrators’ award uses the word "adjourn" in the written document.  The arbitrators then

contacted a circuit court judge for advice.  When they returned, they discovered that the

defendants and their attorneys had left.  The arbitrators then proceeded in the absence of the

defendants.  Evidence was taken, followed by the issuance of an award and a unanimous written

finding that the defendants had failed to participate in the arbitration in a meaningful manner

because of both how they left and their conduct before they left.  

	The arbitrators entered an order containing the following language:

		“We the undersigned arbitrators, having been duly appointed and

sworn (or affirmed), make the following award:  Award in favor of

Trenika Smith & against Defendants Rosendo Renteria, Maria

Renteria & Martin Renteria for $10,000 plus costs.  The panel unanimously finds that the defendants failed to arbitrate in good

faith and a meaningful manner.  Defense counsel (Parrillo, Weiss

per atty Fabrini) objected to certain Rule 90 materials & continued

to argue the objections after overruled.  After defense counsel

repeatedly refused the panels [sic] direction to proceed with arbitration, counsel became contemptuous to the panel yelling &

continuing refusal to the panels [sic] direction to proceed.  Counsel for defense was warned that the panel would contact the judge

presiding to report contempt of the panel.  When the panel

adjourned to call the presiding judge, defense counsel summarily

left with defendants precluding any further participation by

defendants.  Judge Laurie ordered the panel to proceed with the

evidence of the plaintiff  & a hearing was held.”

	The defendants paid the rejection fee within the statutory 30-day window and served a

notice rejecting the arbitration award and requesting a trial.  The plaintiffs moved to bar the

rejection of the award under Supreme Court Rule 91.  145 Ill. 2d R. 91.  In that motion, the

plaintiffs urged the trial court to consider defendants’ departure before the introduction of any

arbitration testimony to be tantamount to a failure to be present at all.  

	The defendants filed a response supported by affidavits supporting their claim that the

arbitrators had declared the arbitration adjourned and instructed all parties to leave the room.  All

three arbitrators then left the room.  The plaintiffs admit the arbitrators did leave the room, but claimed it was only to check a point of law with the trial court, not to end proceedings for the

day.  The plaintiffs claim the arbitrators did not adjourn the proceedings for the day.  The

defendants argued before the trial court that they believed the arbitration was over when they left. 

Additionally, defense counsel claims that at least one of the arbitrators was prejudiced against the

defense law firm.  The defense further argued that Rule 91(b) states that a bad-faith finding is only

prima facie evidence that a party has failed to participate in good faith, but it is not meant to be dispositive of the issue.  

	The trial court declined to take evidence when considering the motion to bar rejection of

the award.  The defense made an offer of proof as to what the witnesses present in court would

have testified.  During the offer of proof, the following discussion took place:

			“THE COURT:  You can make your offer of proof.

			[DEFENSE]:  I will make my offer of proof as an officer of

the court that I would call – then, I will ask them to step forward – 

			THE COURT:  You may make your offer of proof.

			[DEFENSE]:  Okay.  That Mr. Fabrini, as well as Maria and

Martin Renteria, would testify that after the arbitrator stood up and

walked over – that they said it was over, which was one of the

conclusions in the affidavits provided by all three of these people;

that the further basis of the fact that it was over was the fact that

they walked all the way over to the part in the Arbitration Center

where the arbitrators go when cases are over, and that the elevators were near there; that they saw them leave, and there was no attempt

to say there was a temporary adjournment, and did nothing to

indicate to them that it was not, in fact, over.  So, I am just elaborating on that part of the affidavit.

			THE COURT:  That is your offer of proof?

			[DEFENSE]:  That is my offer of proof.  Along with my

argument, I think that it further — there is further evidence that, in

fact, that the arbitrators gave every indication that the case was

over by the fact that all three of them got up and left the room; that,

in fact, they were just making a phone call, as indicated, that it

would only have taken the chair arbitrator to walk out, but in fact,

all of them left the room.

			[PLAINTIFF]:  Judge, I’m going to object to all of this. 

This is not part of the record.  There is no way of proving that this– 

			[DEFENSE]:  I also want the Court to consider the fact that

within the actual bad faith finding itself, that the arbitrators – the

way that it is worded.  And I would draw the Court’s attention to

the last two paragraphs, where they indicate in here that, when the

panel adjourned, there is no indication in there that it was of a

temporary basis, et cetera.  And then, this is the interesting

paragraph after that, that said that Judge Laurie ordered the panel to proceed with evidence.  In other words, indicating that they were

fully ready to have the arbitration over until Judge Laurie ordered

them to go back and proceed with the evidence.   So, I think that

further illustrates my clients’, as well as my attorney’s

understanding that the arbitration was, in fact, over.  I also believe

that this Court should look at and consider the fact that – the

findings of the arbitrators, like I said, are only prima facie, and it is tainted by a couple of things.  It is tainted by two facts, in

particular, that are encompassed within our response; tainted by the

fact that one of the arbitrators did not disclose, nor did he recuse

himself from the hearing, despite the fact that he was prejudiced

against the firm, that he has taken a member of our firm to the

ARDC, and basically he should have recused himself.  And it taints

this whole proceeding, and the whole way we were misled by the

arbitrators into thinking that the case was over when, in fact, they

reconvened.

			THE COURT:  Was that the chairperson?

			[DEFENSE]:  No, that is one of the other arbitrators. 

Now, the chairperson, however, I believe that these findings are

tainted by his words, which are encompassed in the affidavit.  The

findings of the arbitrator are tainted by the fact that the chairperson threatened my attorney who was there present, threatened him with

a finding against this client if he continued to object.  I think that

threat, which is encompassed in my affidavit, taints the entire

finding of the arbitrators; which, again is only prima facie evidence.  And so, the evidence that we put forth in terms of the affidavit is

tainted, taints this, and should not be then held up as prima facie evidence as well.  Basically, Judge, you know, my clients were

there, our attorney was there.  We were all ready to proceed in

good faith.  There were some disputes over evidentiary rulings

which, by the way, I feel they were well founded and I included

some of those things.  But anyway, despite that fact, the arbitrator

used the word ‛adjourned’, and basically said that the case was over.  That was all their understanding:  That the case was over,

and that they were to leave.  I want to call the Renterias to testify. 

They are here.

			THE COURT:  You had your opportunity to put this in

your affidavit.

			[DEFENSE]:  It is my understanding, Judge, that we should

have the opportunity to cross examine, because I have the makers

of the affidavits here.

			THE COURT:  We had a briefing schedule set.  This gentleman may be also wanted to put his own witness back on,

since you feel you need to put your witness back on.  There was a

briefing schedule set.  You had an opportunity to put information

in.  This gentleman had his opportunity to reply.  He chose to do

so.  He did so.  This court is considering only that.

			[DEFENSE]:  Judge, I am confused.  I don’t understand

why I can’t offer an affidavit and then bring the person in live to

testify.

			THE COURT:  Because there is no need for it.  Don’t try to

sandbag people.  Don’t do that.

			[DEFENSE]:  Judge, I am not trying to sandbag people.

			THE COURT:  I know you are not, counsel.  You are

trying to do a good job.  You make an offer of proof as to your

clients Renteria.  You make an offer of proof as to the attorney. 

You make an offer of proof as to those facts.  Put it in the record. 

Move on.”  (Emphasis added.)

	As the above excerpt indicates, the offer of proof was rejected by the trial court as

unnecessary.  The trial court granted the motion to bar rejection of the arbitration award and

entered judgment on the award.  The trial court also, after a hearing on defendants’ motion to

certify a bystander’s report of proceedings, entered an order providing that the “best evidence of

what took place at the arbitration hearing is the report of the arbitrators attached to the award, and said award and attached report is certified as the Bystander Report of Proceedings.”

	STANDARD OF REVIEW

	There is no disagreement between the parties as to the appropriate standard of review to

be applied.  An order barring rejection of an arbitration award is reviewed for an abuse of

discretion.  State Farm Insurance Co. v. Harmon, 335 Ill. App. 3d 687, 690 (2002), citing Goldman v. Dhillon, 307 Ill. App. 3d 169, 172 (1999); Government Employees Insurance Co. v. Campbell, 335 Ill. App. 3d 930, 933 (2002) ("The trial court's decision to bar a party from rejecting an arbitration award is within the sound discretion of the trial court and will not be

disturbed on review absent an abuse of discretion"), citing Williams v. Dorsey, 273 Ill. App. 3d 893, 901(1995).  “An abuse of discretion ‛occurs when the court rules arbitrarily or when its ruling “exceed[s] the bounds of reason.” ’ ”  Campbell, 335 Ill. App. 3d at 933, quoting Williams, 273 Ill. App. 3d at 901, quoting In re Marriage of Malters, 133 Ill. App. 3d 168, 180 (1985).  However, where the propriety of a debarment sanction turns on a question of law, the order is

reviewed de novo.  S. B. Lexington, Inc. v. Near North Insurance Agency, Inc., 244 Ill. App. 3d 1023, 1030 (19983), citing South Suburban Safeway Lines, Inc. v. Regional Transportation Authority, 166 Ill. App. 3d 361, 365 (1988)..  Where the determination to impose sanctions is made without an evidentiary hearing and is based upon papers in the record, the trial court̓s decision is not entitled to deference on review.  Toland v. Davis, 295 Ill. App. 3d 652, 654 (1998), citing North Shore Sign Co. v. Signature Design Group, Inc., 237 Ill. App. 3d 782, 790 (1992).  (“When a trial judge bases his decision solely on the same ‛cold’ record that is before the court of review, it is difficult to see why any deference should be afforded to that decision”).

	ANALYSIS

	Defendants argue on appeal that the trial court erred in barring rejection of the arbitration

award.  They maintain that Supreme Court Rule 90(g) only allows the court to bar rejection of an

arbitration award if a party has violated a Supreme Court Rule 237 (166 Ill. 2d R. 237) notice to

appear.  Because they did appear with counsel, they argue they did not violate Rule 237. 

Defendants also maintain they were misled into leaving the arbitration because the arbitrators used

the word “adjourn” when they meant “recess.”  As they went to leave the building, nobody

stopped them.  Additionally, defendants claim they participated in a good-faith manner and the

arbitrators' bad-faith finding should only have been treated as prima facie evidence of bad faith.  Defendants point out that there is no case law covering a situation such as this where they showed

up but then left when the arbitrator said “adjourn.”  “In the practice of courts, ['recess' is defined

as] a short interval or period of time during which the court suspends business, but without

adjourning.  ['Recess' is also defined as] [t]he period between sessions of court.  A temporary

adjournment of a trial or a hearing that occurs after a trial or hearing has commenced”  Black’s

Law Dictionary 1269 (6th ed. 1990).  "Adjournment" is defined as “[a] putting off or postponing

of business or of a session until another time or place.  The act of a court, legislative body, public

meeting, or officer, by which the session or assembly is dissolved, either temporarily or finally, and the business in hand dismissed from consideration, either definitely or for an interval.  If the adjournment is final, it is said to be sine die.”  (Emphasis added.)  Black’s Law Dictionary 42 (6th ed. 1990).  The defendants claim their actions did not constitute deliberate, contumacious or

unwarranted disregard of the court̓s authority.  The defendants also claim the actions of the court violated their constitutional rights.  

	The plaintiffs argue the bad-faith finding was appropriate because the arbitrator went to

call the presiding judge about the contumacious conduct when the defendants left.  Contrary to

the defendants̓ position, the plaintiffs stayed.  As a result, the plaintiff s argue there is no way to conclude that it was clearly time to leave. 

	“Arbitration is not to be considered simply a hurdle to cross on the way to trial.”  Smith v. Gleash, 325 Ill. App. 3d 79, 83 (2001), citing Employer’s Consortium, Inc. v. Aaron, 298 Ill. App. 3d 187, 189 (1998).  “It is essential to the integrity of the mandatory arbitration process that

the parties proceed at the arbitration hearing in good faith and subject their claims to the sort of

adversarial testing that would be expected at trial.”  Smith, 325 Ill. App. 3d at 83.  To that end, the supreme court promulgated Rule 91(b), stating the following:

			“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.” (Emphasis added.)  145 Ill. 2d R.

91(b).

	It has been determined that bad-faith participation in an arbitration hearing, for purposes

of precluding a party from rejecting the decision of the panel, “may consist of 'inept preparation or

intentional disregard for the process.' ”  Anderson v. Mercy, 338 Ill. App. 3d 685, 689 (2003), quoting Schmidt v. Joseph, 315 Ill. App. 3d 77, 83 (2000).  “When the arbitrators unanimously find that a party failed to participate in good faith, a court will treat their finding as prima facie evidence. ***”  Smith, 325 Ill. App. 3d at 83, citing Goldman v. Dhillon, 307 Ill. App. 3d 169, 172 (1999).  Under these circumstances, “[t]he party subject to Rule 91(b) sanctions has the

burden of presenting evidence to rebut the prima facie evidence.”  Smith, 325 Ill. App. 3d at 83- 84, citing Eichler v. Record Copy Services, 318 Ill. App. 3d 790, 792-93 (2000).  

	The trial court entertained a motion to strike the rejection of the arbitration award, gave

the matter a full briefing schedule, followed by oral argument.  After having considered all of the

above, and despite the trial court’s reluctance to allow the defendants to put on live testimony, the

trial court granted the motion and barred rejection of the arbitration award.  Though there are

differences contained in the affidavits submitted in support of the parties’ arguments, the findings

of the arbitration panel are unanimous, detailed and clearly articulated.  We decline to substitute

our judgment for that of the arbitration panel.  

	As to defendants’ next claim, that to bar rejection of an arbitration award is only proper if there is a violation of Supreme Court Rule 237, defendants cite to State Farm Insurance Co. v. Kazakova, 299 Ill. App. 3d 1028 (1998).  In Kazakova, this court reversed a trial court’s decision to bar a rejection of an arbitration.  That case is somewhat fact-bound, because it turns on the

Kazakova defendant's failure to hire an interpreter in contemplation of the arbitration hearing.  In Kazakova, this court held that “[a]s defendant did not violated Supreme Court Rule 91(b) or Rule 237, the trial court erred in barring her from rejecting the arbitration award.”  Kazakova, 299 Ill. App. 3d at 1034.  In so ruling, the Kazakova court held as follows:

			“[W]e believe that the standard to be applied in deciding

whether to bar defendant from rejecting the award is whether her

conduct was characterized by a deliberate and pronounced

disregard for rules and the court.”  Kazakova, 299 Ill. App. 3d at 1034, citing Walton v. Throgmorton, 273 Ill. App. 3d 353, 359 (1995), and Valdivia v. Chicago & Northwestern Transportation Co., 87 Ill. App. 3d 1123, 1125 (1980).

	Defendants would have this court extend Kazakova such that the violation of Rule 91(b) or Rule 237 is a prerequisite to barring a rejection of arbitration.  We decline to adopt this

characterization.  While violations of those supreme court rules would be good evidence of the

“deliberate and pronounced disregard for the rules and the court” necessary to justify barring the

rejection, the rule remains flexible in order to maintain the trial court’s discretion.  Additionally,

we must reject the defendants’ argument precisely because there was a violation of Rule 91(b) in

that they failed to participate in the arbitration in good faith and a meaningful manner.  The defendants cannot claim the moral high ground if it was their conduct that caused the arbitrators

to stop the hearing in the first place.

	As to defendants’ argument that they were misled into leaving the arbitration such that

there should be no consequences for leaving, that only tells part of the story.  According to the

arbitration panel’s order, prior to leaving, the defendants were not participating in a good-faith

and meaningful manner.  The defendants were “refusing the panels [sic] direction to proceed,” “warned that the panel would contact the judge presiding to report contempt,” and generally

“yelling.”  This all took place before defendants summarily left, thereby “precluding any further participation.”  Additionally, we cannot ignore the fact that the plaintiffs did not leave after the panel made its allegedly misleading announcement of an adjournment.  

	Defendants also claim the sanction was too severe and their constitutional rights were

violated by the trial court’s denial of a jury trial and subsequent entry of judgment, as they put it,

“simply because they followed the arbitrators’ instructions to leave the room once the hearing was

adjourned.”  Again, this characterization of the record fails to take defendants' actions prior to the

“adjournment” into account.  The trial court, in barring rejection of the award of the arbitrators,

considered everything contained in the record of proceedings.  The trial court also entertained

oral arguments on the motion.  In so ruling, the trial court rejected the defendants'

characterization of the events.  We similarly reject defendants’ contentions because the burden

was on them to demonstrate by the manifest weight of the evidence that the trial court abused its

discretion and that the sanction was too severe.  “The sanctions of dismissal of a plaintiff’s action

or entry of a judgment against a defendant is the most drastic of sanctions and should be imposed reluctantly and only as a last resort when all other enforcement powers at the court’s disposal

have failed to advance the litigation. [Citation.]  These drastic sanctions should not be invoked

except in those cases where the actions of the party show a deliberate, contumacious and unwarranted disregard of the court’s authority.”  (Emphasis added.)  Easter Seal Rehabiliation Center for Will-Grundy Counties, Inc. v. Current Development Corp., 307 Ill. App. 3d 48, 51 (1999), citing Wilkins v. T. Enterprises, Inc., 177 Ill. App. 3d 514 (1988).  Contempt of the arbitrators' authority is precisely the issue in this case.  The trial court felt that debarment of a

notice of rejection of an arbitration is an appropriate sanction for what the arbitrators themselves

unanimously found to be deliberate, contumacious and unwarranted conduct.   Such a conclusion

is not unwarranted on this record.

	The defendants next argue that the arbitrators’ actions and the trial court’s ruling resulted

in the defense being subjected to two arbitration hearings, the second of which was held without

notice.  The plaintiffs suggest there was only one hearing with a temporary recess to allow the

arbitrators to consult with the presiding judge.  The trial court, sub silencio, agreed with that notion.  As a temporary recess, there would be no additional notice requirement.  Because we

review the trial court’s order for an abuse of discretion, we cannot say the decision exceeds the

bounds of reason.  We need not discuss the matter further.

	Finally, defendants claim that because there were disputed facts in the conflicting affidavits

presented in the motion to strike the rejection of the arbitration, the trial court should have

conducted an evidentiary hearing.  The defendants were given the opportunity to fully brief the

arguments their counsel made orally.  Defense counsel was also allowed to make an offer of proof, even though the offer was ultimately rejected.  The trial court decided that it was not

necessary, in light of the affidavits presented, to have live testimony from the affiants.  The trial

court explained to the defense counsel that the live testimony would not have added any

substantial matters to the allegations contained in the affidavits, responses and argument.  In

support of their claim, defendants cite to In re Estate of Smith, 201 Ill. App. 3d 1005 (1990).  In Smith, after a jury verdict in favor of the claimant, Gualarndri & Company,  the claimant filed a written motion seeking attorney fees and other expenses.  The trial court denied that motion in an

order that, though it indicated the motion was fully briefed and argued, was silent as to whether

the parties were given any opportunity to introduce evidence at the hearing.  The Smith court recognized that “[t]he circuit court is in the best position to decide how [applicable] rules or

statutes should be applied in the cases before it, and for that reason its decisions are entitled to

considerable deference upon review.”  Smith, 201 Ill. App. 3d at 1009.  The Smith court also ruled:

		“[T]he predicate to such deference is that the circuit court make an

informed and reasoned decision.  A hearing ought to be held to give

the parties involved an opportunity to present any evidence needed

to substantiate or rebut the claim for sanctions and an opportunity

to argue their positions.  A hearing was held in this case on the

motion for fees and expenses, but the order entered suggests that

no evidence was taken at that hearing.  In the absence of findings

which would justify foregoing an evidentiary hearing, the circuit court erred in not having such a hearing.”  Smith, 201 Ill. App. 3d at 1009, citing Beno v. McNew, 186 Ill. App. 3d 359 (1989).  

	The Smith case is inapposite to this one.  First and foremost, Smith does not deal with the necessity of an evidentiary hearing when a violation of Rule 91 is implicated.  Second, Smith recognizes the chance for circumstances when, as now, the trial court is sufficiently well informed

so as to be able to render a proper decision.  Third, Smith did not address the impact of an offer of proof on this type of case.  Here the defendants were afforded the opportunity to fully brief the

matter, orally argue it and make an offer of proof.  The offer consisted of a narrative of the

proposed testimony to be given by those persons whose affidavits were already before the trial

court.  The trial court considered all of those things yet did not see the necessity for live testimony

to repeat the information contained in the affidavits attached to the pleadings.  Additionally, the

trial court was well aware of the supreme court rule stating that “[a]n arbitrator may not be called

to testify as to what transpired before the arbitrators and no reference to the fact of the conduct of

the arbitration hearing may be made at trial.”  166 Ill. 2d R. 93(b).  Based upon our review of the

record in this case, we cannot say the trial court’s decision or conduct was an abuse of discretion.

	CONCLUSION

	In light of the foregoing, the decision of the trial court is hereby affirmed.

	Affirmed.

cA	Campbell, P.J. and Hartigan, J., concur.