Illinois Official Reports 

Appellate Court

Glover v. Fitch, 2015 IL App (1st) 130827

Appellate Court 

Caption

TIFFANY L. GLOVER, by National Heritage Insurance Company, 

Plaintiff-Appellant, v. BEVERLY FITCH, Defendant-Appellee.

District & No. First District, Third Division

Docket No. 1-13-0827

Filed June 24, 2015

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 11-M1-13422; the 

Hon. James Snyder, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Shelist Law Firm, LLC, of Chicago (Samuel A. Shelist, of counsel), 

for appellant.

Fabrizio, Hanson, Peyla & Kawinski, P.C., of Joliet (Jamie Shimer, of 

counsel), for appellee.

Panel PRESIDING JUSTICE PUCINSKI delivered the judgment of the 

court, with opinion.

Justices Hyman and Mason concurred in the judgment and opinion.
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 OPINION 

¶ 1 This case arises from an automobile collision in which Tiffany Glover suffered personal 

injuries and Glover’s insurer, plaintiff National Heritage Insurance Company (National 

Heritage), suffered $7,224 in damages. National Heritage brought this subrogation action as 

the subrogee of Glover against defendant, Beverly Fitch, who was allegedly negligent in 

causing the collision. The case was assigned to arbitration and the arbitration trial date 

occurred with defendant and defendant’s counsel’s failing to appear. An arbitration award was 

entered in favor of National Heritage. Defendant filed a motion to reject or vacate the 

arbitration award, arguing that defense counsel never received notice of the arbitration hearing 

date. The circuit court granted defendant’s motion and the case proceeded to trial, whereupon a 

jury trial was held and resulted in a verdict for defendant. Plaintiff appealed, arguing that the 

arbitration award should not have been vacated due to alleged lack of postcard notice to 

defense counsel because counsel has an affirmative duty to follow his own case and knew that 

the case had been assigned to arbitration. Defendant argued that we lack jurisdiction of the 

appeal because plaintiff did not seek Illinois Supreme Court Rule 304(a) language (Ill. S. Ct. R. 

304(a) (eff. Feb. 26, 2010)) to permit an earlier appeal from the order vacating the arbitration 

award and that, in the alternative, the court did not abuse its discretion in vacating the 

arbitration award where defense counsel was not sent notice of the arbitration date. 

¶ 2 Regarding jurisdiction, we hold that parties are not required to appeal an interlocutory 

order within 30 days of entry of that order but may instead choose to appeal upon a final 

judgment in the case. Parties may, of course, seek the inclusion of Illinois Supreme Court Rule 

304(a) language (Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010)) in an interlocutory order to be able to 

immediately appeal that order, but they are not required to do so and may, instead, wait until 

entry of a final judgment. 

¶ 3 As to the merits of the case, we hold that the court did not abuse its discretion in vacating 

the arbitration award. Although the circuit court relied on the fact that defense counsel did not 

receive postcard notice of the hearing date because of the circuit court clerk’s delay in properly 

entering his appearance, we caution that attorneys still have a duty to keep track of their cases 

on the docket. In this case defense counsel apparently did not inquire as to the date of the 

arbitration hearing, though he knew the case was on the arbitration calendar. Given our 

deferential standard of review, however, we cannot say that the circuit court abused its 

discretion in vacating the default judgment based on the failure to send notice of the hearing 

date to defense counsel. While the circuit court focused on the error by the clerk’s office in 

entering defense counsel’s appearance, we hold that the arbitration center’s failure to provide 

the required notice pursuant to Illinois Supreme Court Rule 88 (eff. June 1, 1987) and the 

arbitration panel’s failure to inquire whether all parties received due notice pursuant to Illinois 

Supreme Court Rule 91(a) (eff. June 1, 1993) also support the circuit court’s determination to 

vacate the arbitration default judgment. 

¶ 4 BACKGROUND 

¶ 5 On February 4, 2011, defendant Beverly Fitch was allegedly negligent in an automobile 

collision with Tiffany L. Glover. Glover suffered personal injuries as well as property damage. 

Glover’s insurer, National Heritage, paid Glover damages and brought this action on May 11, 

2011 against Fitch as Glover’s subrogee to recover the damages it paid. 
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¶ 6 On August 31, 2011, Fitch’s counsel filed his appearance, jury demand, and answer. The 

case was transferred to assignment to arbitration on November 10, 2011. A discovery closure 

date was entered on November 10, 2011. 

¶ 7 On December 11, 2011, plaintiff filed and mailed out an Illinois Supreme Court Rule 90 

(eff. July 1, 2008) and Rule 237 (eff. July 1, 2005) package for arbitration to Fitch’s counsel. 

The Rule 90 and Rule 237 package did not include or reference the arbitration hearing date. 

¶ 8 On January 13, 2012, Fitch’s counsel filed a motion to continue the arbitration, to reopen 

discovery, and to consolidate. The motion was noticed for January 25, 2012. On that date, the 

motion to continue arbitration was granted and the matter was reset for arbitration on March 

27, 2012. On February 21, 2012, plaintiff filed a motion to continue the March 27, 2012 

arbitration date and to amend the complaint to include personal injuries. 

¶ 9 Plaintiff was granted leave to file an amended complaint and filed an amended complaint 

on March 14, 2012, which added a count for subrogation and a count for personal injuries. The 

discovery closure date was continued to May 1, 2012. The March 27, 2012 arbitration hearing 

date was stricken upon plaintiff’s motion and a new arbitration hearing date was not set at that 

time. 

¶ 10 On April 13, 2012, an arbitration notice setting the arbitration date for June 27, 2012 was 

sent to plaintiff’s counsel, but defense counsel was not sent postcard notice of the arbitration 

hearing date. 

¶ 11 On May 9, 2012, defendant answered plaintiff’s amended complaint, admitting to the 

collision but denying negligence. Plaintiff then filed a second Rule 90 and Rule 237 package, 

including medical bills of $6,301.27 and a payoff of Glover’s automobile loan, for the total 

amount of $12,770.97. 

¶ 12 On June 14, 2012, defense counsel filed a motion to consolidate this case with an action 

filed by State Farm, defendant’s insurer, related to the same automobile collision. Defense 

counsel renoticed the same motion to consolidate on July 18, 2012. 

¶ 13 Defendant and defense counsel both failed to appear on the June 27, 2012 arbitration date. 

An arbitration award was entered in favor of Glover and plaintiff National Heritage for 

$8,142.52 for property damage and $7,774 for personal injuries damages. The arbitration 

award noted that both defendant and her counsel were “not present.”

¶ 14 Defendant renoticed the motion to consolidate on July 26, 2012. 

¶ 15 Defendant filed a rejection of the arbitration award on July 27, 2012, and moved to vacate 

the arbitration award, arguing that notice of the arbitration hearing date was not received via 

postcard notice. Plaintiff National Heritage and Glover filed a motion to debar defendant’s 

rejection of the award and, in the alternative, to bar testimony from defendant Fitch as a 

sanction. 

¶ 16 At the hearing on defendant’s motion to vacate the arbitration award, defense counsel 

explained that he attempted three times to present a motion to consolidate the cases but was in 

the wrong room or at the wrong time or did not show up on the dates of presentment each time 

for the motion. The court indicated that it asked the court clerk to look up the computer record 

and the record reflected that defense counsel’s appearance was not entered by the circuit court 

on the date that counsel’s appearance was filed. Rather, defense counsel’s appearance was 

entered into the clerk’s records on January 4, 2012 but reflected the filing date of August 31, 

2011. The court stated that it found that this was the record in this case. The court then stated: 
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“[Counsel’s] frustration is well-taken, as is mine. I’ve been working in some detail, as 

has [another judge], with the clerk of the circuit court to get the clerk of the circuit court 

to record appearances and other documents filed for the record. In most cases, it 

doesn’t matter. *** But, here, we have the situation where the arb[itration] center has to 

send out the notice. The arb[itration] center did not have that appearance. They did file 

it; it was filed properly; it wasn’t recorded by the clerk. It was recorded by the clerk 

once after the fact, perhaps, because of some of the work that I’m trying to do to 

encourage the clerk to perform these fundamental aspects of the job of the Circuit 

Court of Cook County ***. 

The Motion to vacate the arb[itration] award is granted.”

¶ 17 The court entered an order granting the motion to vacate the award on September 26, 2012. 

This order did not contain Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010) language. 

¶ 18 Plaintiff moved to reconsider, but the trial court entered an order denying plaintiff’s motion 

to reconsider on December 17, 2012. This order also did not contain Illinois Supreme Court 

Rule 304(a) (eff. Feb. 26, 2010) language. 

¶ 19 The case was transferred for a jury trial status. On December 11, 2012, the presiding 

municipal judge indicated the matter was not to be rearbitrated. 

¶ 20 A jury trial took place on February 23, 2013, on Glover and National Heritage’s claims 

only, and not on the State Farm claims in the separate pending action, as the cases were not 

consolidated. The verdict was for defendant. Plaintiff National Heritage and Glover appealed 

within 30 days of the verdict. 

¶ 21 ANALYSIS 

¶ 22 We first address defendant’s argument that we lack jurisdiction of this appeal because 

plaintiff did not seek Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010) language to 

permit an earlier appeal from either the order vacating the arbitration award or the order 

denying plaintiff’s motion to reconsider the order granting the motion to vacate. Plaintiff does 

not cite any authority requiring a party to seek Rule 304(a) language and take an interlocutory 

appeal. The Uniform Arbitration Act provides that “[a]ppeals may be taken in the same 

manner, upon the same terms, and with like effect as in civil cases.” 710 ILCS 5/18 (West 

2012). Illinois Supreme Court Rule 303(a)(1) provides for appeals within 30 days of entry of a 

final judgment. Ill. S. Ct. R. 303(a)(1) (eff. May 30, 2008). “[T]he law is settled that an appeal 

from a final judgment permits review of all preceding nonfinal orders that produced that final 

judgment.” Farmers Automobile Insurance Ass’n v. Wroblewski, 382 Ill. App. 3d 688, 695 

(2008) (citing Pekin Insurance Co. v. Pulte Home Corp., 344 Ill. App. 3d 64, 67-68 (2003)). If 

a party does not appeal an interlocutory arbitration order within 30 days, it may do so upon a 

final judgment. See, e.g., Anderson v. Financial Matters, Inc., 285 Ill. App. 3d 123, 135 (1996) 

(the failure to appeal the order compelling arbitration did not preclude review of that order 

when the final judgment was entered). We continue to address appeals from prior arbitration 

orders upon appeal after final judgment. See, e.g., Nelson v. Country Mutual Insurance Co., 

2014 IL App (1st) 131036, ¶¶ 1, 8 (reviewing a prior order entered by the trial court vacating 

an arbitration award and granting summary judgment on appeal after final judgment was 

entered, where the plaintiff did not appeal the final judgment itself but the prior interlocutory 

arbitration order). Plaintiff filed this appeal within 30 days of the verdict. We have jurisdiction 

and proceed to address the appeal from the order vacating the arbitration award. 
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¶ 23 Turning to the merits of plaintiff’s argument, plaintiff National Heritage argues that the 

arbitration award should not have been vacated due to alleged lack of postcard notice to 

defense counsel because counsel has an affirmative duty to follow his own case and knew that 

the case had been assigned to arbitration. 

¶ 24 Under Supreme Court Rule 91, the failure of a party to attend a mandatory arbitration 

hearing constitutes a waiver of that party’s right to reject the award and represents a consent to 

the entry of judgment by the circuit court in accordance with the award. Ill. S. Ct. R. 91 (eff. 

June 1, 1993). Rule 91(a) is mandatory, so that a party who fails to appear at an arbitration 

hearing either in person or through counsel is automatically barred from rejecting the 

arbitration award without further action by the circuit court. Jackson v. Bailey, 384 Ill. App. 3d 

546, 548 (2008). The barred party’s recourse is to file a motion to vacate as provided in Rule 

91(a), and a party absent from an arbitration hearing has the burden of showing that his or her 

absence was reasonable or the result of extenuating circumstances. Jackson, 384 Ill. App. 3d at 

549. The supreme court rules regarding mandatory arbitration should be read in conjunction 

with each other and in harmony with the rest of the law. Jackson, 384 Ill. App. 3d at 549. 

Illinois Supreme Court Rule 91(a) limits the circumstances under which a party failing to 

appear at an arbitration can file a motion to vacate the judgment under section 2-1301 or 

section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1301, 2-1401 (West 2012)) to 

circumstances “[w]here the failure to attend was inadvertent.” Ill. S. Ct. R. 91, Committee 

Comments. See also Jackson, 384 Ill. App. 3d at 549. 

¶ 25 We agree that attorneys have the duty to monitor their cases on the docket. Because 

attorneys have a duty to act with reasonable diligence in representing their clients’ interests, 

including tracking cases and learning the date upon which a hearing is to occur, a party’s lack 

of notice of the date of a hearing does not necessarily excuse the party’s failure to appear at the 

hearing. Jackson, 384 Ill. App. 3d at 549. See also Tiller v. Semonis, 263 Ill. App. 3d 653, 657 

(1994) (holding attorneys have a legal and ethical duty to act with reasonable diligence in 

representing their clients’ interests, including tracking their cases and learning the date upon 

which a hearing is to occur). 

¶ 26 Illinois Supreme Court Rule 91(a) provides that an arbitration hearing can proceed in a 

party’s absence only where there has been “due notice”:

“The arbitration hearing shall proceed in the absence of any party who, after due 

notice, fails to be present. *** The failure of a party to be present, either in person or by 

counsel, at an arbitration hearing shall constitute a waiver of the right to reject the 

award and a consent to the entry by the court of a judgment on the award. In the event 

the party who fails to be present thereafter moves, or files a petition to the court, to 

vacate the judgment as provided therefor under the provisions of the Code of Civil 

Procedure for the vacation of judgments by default, sections 2-1301 and 2-1401, the 

court, in its discretion, in addition to vacating the judgment, may order the matter for 

rehearing in arbitration, and may also impose the sanction of costs and fees as a 

condition for granting such relief.” (Emphasis added.) Ill. S. Ct. R. 91(a) (eff. June 1, 

1993) (noting 735 ILCS 5/2-1301, 2-1401). 

¶ 27 An arbitration award issued without due notice is voidable. Jordan v. Bangloria, 2011 IL 

App (1st) 103506, ¶¶ 10-11; Juszczyk v. Flores, 334 Ill. App. 3d 122, 125-26 (2002). Illinois 

Supreme Court Rule 88 further provides that “[t]he procedure for fixing the date, time and 

place of a hearing before a panel of arbitrators shall be prescribed by circuit rule provided that 
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not less than 60 days’ notice in writing shall be given to the parties or their attorneys of 

record.” Ill. S. Ct. R. 88 (eff. June 1, 1987). Cook County Circuit Court Rule 1.1(a) (July 1, 

1976) requires that, unless notice is excused, “[n]otice of all proceedings in an action shall be 

given to all parties who have appeared and have not been found by the Court to be in default.” 

Illinois Supreme Court Rule 11 (eff. July 1, 2013) provides that “[i]f a party is represented by 

an attorney of record, service shall be made upon the attorney. Otherwise service shall be made 

upon the party.” Reading Illinois Supreme Court Rule 88, Cook County Circuit Court Rule 

1.1(a), and Illinois Supreme Court Rule 11 together, although notice is given to parties, after an 

attorney has filed an appearance for a party all notices should be sent to the attorney at his or 

her address of record. Ill. S. Ct. R. 88 (eff. June 1, 1987); Cook Co. Cir. Ct. R. 1.1(a) (July 1, 

1976); Ill. S. Ct. R. 11(a) (eff. July 1, 2013). Here, defense counsel appeared but was not sent 

notice. 

¶ 28 National Heritage also argues that “[d]efendant’s counsel conspicuously fails to present 

a[n] affidavit that Fitch herself did not receive the ‘card’ setting the date; he only submits an 

Affidavit that his office did not receive the ‘card.’ ” On appeal, defendant states that neither 

defendant nor defense counsel received postcard notice. National Heritage makes no response 

to this assertion and does not claim that defendant ever received any postcard notice, thus 

apparently conceding this fact. Even if defendant had received postcard notice, it would not 

change the result in this case because by the time the arbitration hearing date was set, the 

clerk’s electronic docket did show the appearance of counsel and so counsel should have 

received postcard notice. Defense counsel’s appearance was entered into the clerk’s records on 

January 4, 2012; the hearing date was set for June 27, 2012. 

¶ 29 While we reaffirm that counsel has the duty to follow his or her own cases and note that this 

court has affirmed denials of motions to vacate arbitration awards due to alleged lack of 

postcard notice (see Jackson, 384 Ill. App. 3d at 549-50; Tiller, 263 Ill. App. 3d at 657), the 

fact remains that we review determinations whether to vacate an arbitration award due to 

failure to receive notice under the relatively low abuse of discretion standard. The decision to 

grant or deny a motion to vacate under section 2-1301 is within the sound discretion of the trial 

court and thus will not be reversed absent an abuse of discretion or a denial of substantial 

justice. Jackson, 384 Ill. App. 3d at 548. We may find an abuse of discretion only where no 

reasonable person would take the position adopted by the trial court; that is, where the trial 

court acted arbitrarily or ignored recognized principles of law. Somers v. Quinn, 373 Ill. App. 

3d 87, 95-96 (2007). 

¶ 30 Here, the court exercised its discretion to grant the motion to vacate. Plaintiff National 

Heritage and Glover merely repeat the same arguments. “A lawyer’s claim of lack of postcard 

notice is ultimately rooted in credibility and the trial court’s assessment of it.” Tiller, 263 Ill. 

App. 3d at 657. Defense counsel made the same argument below in its motion to debar and its 

motion to reconsider. 

¶ 31 The circuit court acknowledged the well-recognized principle that attorneys have the 

responsibility to monitor their cases but found that defense counsel was not provided the 

required notice of the hearing date. Notice of an arbitration hearing date is also required under 

the law. We cannot find that no reasonable person would take this position. 

¶ 32 While the court specifically based its decision to grant the motion to vacate the arbitration 

award on the fact that there had been problems with the issuance of arbitration notices due to 

the clerk’s office’s failure to timely record attorney appearances, we further note the glaring 
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omission by the arbitration center and the arbitration panel in inquiring as to whether defense 

counsel was given “due notice” pursuant to Supreme Court Rule 91 prior to proceeding with 

the arbitration hearing and then entering a default judgment. Supreme Court Rule 91 allows for 

an arbitration hearing to proceed in the absence of a party only where there has been “due 

notice.” The arbitration hearing should not have been allowed to proceed in the first place due 

to the lack of proper notice. Had the arbitration center or the arbitration panel properly inquired 

into whether defense counsel received notice of the hearing date, the default judgment and 

subsequent litigation regarding the motion to vacate the default judgment, including this 

appeal, could have been avoided. 

¶ 33 We caution that attorneys are still under a duty to monitor their cases and a failure to 

receive notice is not an excuse to vacate a default judgment in every case. But here plaintiff has 

not shown how the court abused its discretion. We therefore are bound to affirm. 

¶ 34 CONCLUSION 

¶ 35 Regarding jurisdiction, we hold that parties are not required to appeal an interlocutory 

order within 30 days of entry of that order but may instead choose to appeal upon a final 

judgment. 

¶ 36 As to the merits we hold that, while attorneys have a duty to keep track of their cases on the 

docket, the court did not abuse its discretion in vacating an arbitration award where 

defendant’s counsel did not receive notice of the arbitration hearing date because the clerk’s 

office did not timely enter counsel’s appearance, and also where the arbitration center and 

arbitration panel did not inquire into whether there was “due notice” prior to proceeding with 

the arbitration hearing and entering a default judgment. 

¶ 37 Affirmed.