FIFTH DI VISI ON July 25, 2008

No. 1-07-1502
INGRI D JACKSON, Plaintiff-Appellee,
v. LEONARD BAI

LEY, Defend ant-App ellant. ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County

Honorab le Moira S. Johnson, Judge Presi ding.
JUSTICE O’MARA F ROSSARD del ivered t he opinion

of the co urt: Defendant Leona

rd Bailey appeals from a decision of the circuit court deny ing his motion to vacate a judgment for $9,000 in favor of pla intiff Ingrid Jackson entere d on an arbitration award. He contends that the trial court abused its discre tion by not vacating

the judgment becaus e he di d not receiv e prop er not ice of t he arbi trati on hea ring. In July 2005, pla

intiff sued defendant for personal injuries alleg edly arising from defenda nt’s negligenc e in oper

ating a vehicle that colli ded with p laintiff ’s vehic le in Aug

ust 2004. Defendant appeared pro se in October 2005 and the case was assigne d to mandatory arbitration. In May 2006 defendant sought to continue the arbitration hearing on the grounds that the Chicago park district (District), his employ er at the time of the incident, had just received the1-07-1502

2

case, was considering repr esenting him, and required prepara tion time. The motion was granted and the arbitration hearing of May 18 was stricken. Counsel for the District filed an additional appearance for defe

ndant in May 2006 that included the District’ s present address. (The District moved its headquarters, including counsel, in 2002). On Octobe

r 11, 2006 , the arb itration hearing was held and an a ward wa s issued in plaintiff ’s favor for $9,00 0. The award state d that def endant di d not part

icipate i n good f aith because he did not attend the arbitration hearing , either in person or through counsel. The awa rd was filed with the court on November 13. Also on November 13, 2006, defendant filed a pro se motion to vacate the arbitration award, claiming that he missed the arbitration hear ing due to misdirected mail. On November 22, 2006, the motion was stricken. On December 12, 2006, the court entered judg ment on the arbitration award. Defendant, through the District’s counsel, timely filed a motion to vacate the judgment. He alleged that the District did not receive notice of the new arbitration hearing date of October 11 until after the award was reduced to a judgment. Attached to the motion was the District counsel’s affidavit to the above effect, a letter from plaintiff’s counsel to the District’s counsel (at the correct address) informing him of the judgment, notice of the award sent to the District’s previous address and to def

endant’ s home add

ress, an d an enve lope from the cler k of the c ourt to the District, sent to the previous address and returned to sender as undeliverable. Plaintiff responded to the vacatur motion, arguing tha t any misdirection of the ar bitration hearing notice was due to the District’s counsel’ s failure to inform the court clerk of the1-07-1502

3

District’s new address, noting that there was no indication whe n the District moved and no indication of a cha

nge of address in the cou

rt file. Pl aintiff a

rgued that def endant pe rsonally knew of the arbitration hearing bec ause he filed a pro se vacatur motion before judgment was entered on the award. Also, plaintiff had sent defe ndant, at the District’s counsel’s proper addres s, an a rbitr ation packet and a n otice to app ear and produ ce at t he arbi trati on hea ring. Defend ant repl ied in supp ort of his vacatur motion, ar

guing that the D istrict’s

counsel d

id not receive notice of the arbitration hearing at his correct address and that notice to a party is not sufficie nt when that party

was represente d by

counsel w

ith an app earanc e on file . Defen dant also argued that default judgments ar e generally

not favored and that the judgment should be vacated as a matter of fairness because his abse nce from the arbitration hearing was not due to his own negligence but the court cle rk’s misdirection of the hearing notice. Def endant noted that plaintiff’s arbitration packet referenc ed the stricken May 2006 arbitration date and not the October 2006 hea ring in q uestion. H e also not

ed that the District had bee n at its new

address since 2002, well before the instant litigation. The court held a hearing on the vac atur motion on March 12, 2007. The court noted that the records of the clerk of the court showe d that postcard notice of the arbitration hearing had been sen t. The District’s c ounsel ad mitted tha

t, while he

moved in 20 02, he did

not change his address with the clerk until January 2007. However, counsel also stated that this case was the first instance of not receiving notice from the c ourt at the correct address. When asked how he had followed the case since his May 2006 appearance, counsel stated that he wa ited for the clerk’s postcard notice of the arbitration hea ring. Following argume

nts of the parties, the court1-07-1502

4

denied the vacatur motion. The court found that it is an attorney ’s responsibility to maintain a correct address with the clerk of the c ourt for purpose of receiving notices. The court also found that, because defendant personally received notice of the arbitration hear ing, he should have attended the hearing. This appeal timely followed. On appea l, defen dant cont ends that the trial court ab used its dis cretion

in deny ing his vacatu r moti on bec ause h e did n ot rece ive pr oper n otice of the arbit ratio n heari ng. Supreme C ourt Rule 9 1(a) g overns a bsence f rom arbit ration he arings

and provides: “The arbitration hearing shall proce ed in the absence of any party who, af

ter due notice, fails to be present. *** The failure of a party to be pr

esent, 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.” 145 Ill. 2d R. 91(a)
. Rule 91(a ) is manda

tory , so that a

party who fails to appea r at an a rbitrati on heari

ng eithe r in person or through counsel is automatically barred from rejecting the a rbitration award, without further action of the circuit court. Moon v. Jones , 282 Ill. App. 3d 335, 337 (1996). I nstead, Rule 91(a) provides that the absent party ’s remedy is to file a motion or petition to vacate the judgment under section 2-1301 or 2-1401 of the Code of Civil Procedure. 145 I ll. 2d R. 91(a), citing 735 ILCS 5/2-1301, 2-1401 (West 2006). Whether to grant or deny

a motion under section 2-1301 is within the sound discretion of the trial court, and its decision will not be reversed absent an abuse of discretion or a denial of1-07-1502

5

substantial justice. Deutsche Bank National v. Burtley , 371 Ill. App. 3d 1, 5-6 (2006). 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 arbitra rily or ignor

ed recognized principles of law. Somers v. Quinn , 373 Ill. App. 3d 87, 95-96 (2007). Whether substantial justice is being achieved by

vacating a judgment or order is not subject to precise definition, but relevant considerations include diligence or the lack ther eof, the existence of a meritorious defense, the severity of the pe

nalty resulting f

rom the order or judgment, and the relative ha rdships on the parties from granting or deny ing vacatur. Mann v. Upjohn Co. , 324 Ill. App. 3d 367, 377 (2001). The supreme court rules rega rding mandatory

arbitration should be read in conjunction with each other and in harmony with the rest of the law. Mrugala v. Fairfield Ford, I nc. , 325 I ll. App. 3d 484, 491 (2001). Thus, a motion seeking relief from the manda tory effe cts of Rule 91(a) is governed by

Rule 91(a) itself, under which vacatur is limited to instances where the party’s failure to attend arbitration was inadvertent, as well as by section 2-1301 or 2-1401. Mrugal a , 325 Ill. App. 3d at 489-90. Where a par ty was require d to attend an arbitration hearing but failed to attend, that party has the burden of showing that his noncompliance was rea sonable or the result of extenuating circumstances. Government Employ ees I nsuranc e Co. v. Smith , 355 I ll App. 3d 915, 924 (2005). Attorneys have

a legal and ethical duty

to act with reasonable diligence in repr esenting their client’s interests, including tracking their c ases and learning the date upon which a hearing is to occur. Tiller v. Semonis , 263 Ill. App. 3d 653, 657 (1994). A party ’s lack of notice of the date of a hearing does not nece ssarily excuse the party ’s failure to appear at the hearing
. Tiller , 263 I ll. App. 3d

at 657. Th

us, this co

urt affi rmed the denial of vacatur to a litig ant who f

ailed to1-07-1502

6

attend a mandatory

arbitration hearing and claimed in his vaca tur motion that counsel did not receive postcard notice of the hea ring. Tiller , 263 Ill. App. 3d at 657. Here, it is apparent from the record that the c lerk of the court sent notice of the arbitration hearing to the parties but had on file as the District’s addr ess its old, pre-2002 address. The District’ s counsel

admitted a

t the vac atur hea

ring tha t he did not

correct the Distr

ict’s add ress with the c lerk until

severa l ye ars afte

r the Dist rict move d. Moreover, he a dmitted tha

t it was his practic e to simply

await the arbitra tion notice

from the c lerk. On

these fa cts, we f ind a nota ble lack of r easonab le complia

nce or extenuating

circumst ances f or defe ndant’s a bsence, either in perso n or th rough c ounse l, fro m the a rbitr ation hearin g. Defendant relies heavily

on Wolder v. Wolder , 30 Ill. App. 2d 98 (1961). I n Wolder , a defaul t div orce de cree was entere d in p laint iff’s favor, after n otice was giv en in t he Chi cago Daily Law Bulletin, and defendant unsuccessfully filed a motion to vacate the decree. Wolder , 30 Ill. App. 2d at 99-100. This court reversed the denial of vacatur, noting that “our c ourts have been libe ral in set ting asi de defa

ults” and that, “[i]n c onsideri

ng a petition to va

cate a d efault divorce decree, the question of a meritorious def ense was held to be of greate r importance than the question of diligence or the lack of it.” Wolder , 30 Ill. App. 2d at 101. Howeve r, we de em Wolder

distingu ishable f rom the instant cas e, first a nd forem ost because Wolder

did not concern mandatory arbitration where, as stated above, Rule 91(a) governs as well as section 2-1301. While the Wolder court’s concer n was tha t defaul t would deprive a party of a tria l on the me

rits ( Wolder , 30 Ill. App. 2d at 100-01), the mandatory arbitration “system is an a lternative to trial where all issues raised by the parties are decided by the arbitration panel” ( Mrugal a , 325 Ill. App. 3d at 491). I n other words, it was defendant’s1-07-1502

7

absence from the a

rbitrati on heari

ng that t hwarted a heari ng on the merits. Another point of di stinction i s that “c areles sness in r esponding

to the ca ll of case s [that] can impede the administration of justice” was more understanda ble in Wolder , where it resulted from “ ‘slight error or confusion on the par t of [counsel] or a clerk’ ” in the form of a misspelling of the parties’ names in the court call as published in the Chicago Daily Law Bulletin. Wolder , 30 Ill. A pp. 2d at 100 -01, q uoti ng In re Estate of Hoy man , 27 Ill. App. 2d 438, 442 (1 960). By contrast, the lac

k of notic e here stemmed fr om the Dist

rict’s c ounsel’s

gener al failur e to mainta

in an up-to-date address with the clerk of the cour t, without which the “postal card mailed by the court’s clerk” posited by

the Wolder

court (Wolder , 30 Ill. App. 2d at 102) is useless, as shown palpably in the instant case
. For the a foreme ntioned r easons, we conclu

de that the trial c ourt did not abuse its discretion in denying

defendant vacatur of the judgment f or plaintiff on the arbitration award. Accordingly , the judgment of the circuit court is affirmed. Affirmed. FITZG ERALD SMITH, P.J., and GALLAGH ER, J., concur.REPORTER OF DE CIS IONS - I LLI NOIS APPE LLA TE COURT
INGRI D JACK SON, Plai nti ff- Appell ee,
v. LEON ARD BAILEY, De fen dan t-Ap pellan t.
No. 1-07- 1502 Ap pe llate Co ur t of Illino is Fi rs t Di st ri ct , FI FTH D I VI SI ON

July 25, 2008
Jus tice M arga ret O 'Ma ra F ros sar d au thore d the opinio n of th e co urt: Presiding Justice Fitzgerald Sm ith and Justice Gallagher con cur.

Ap pe al fr om the Cir cu it C ou rt o f C oo k C ou nty. The Hon. Moira S. Johnson, Judge Presi ding.
Counsel for

Defe ndant -A ppel la nt Nelson A. Brown, Jr ., Senior Counsel of

the Chi cago Park Dist ri ct, Chicago, IL 60605 G EN ER AL CO U N SE L: M ar ia G ar icia
Counsel for Pl ainti ff-Appell ee Lunz & Jer sey, Chicago, IL 60602 OF CO UNSEL: Robert E. Lunz

and Kevin Quinn Butl er, Chicago, IL 60661