FIRST DIV ISION SEPTEMBER 15, 2008

No. 1-07-2112

JOHN BUSCH and SHEB’ TUFI KUSHMA, ) Appeal from the ) Circuit Court of Plaintiff s, ) Co ok Co un ty. v. ) ) MICHAEL

K. MISON, ) No. 05 L 002823 ) Defendant-Appellees and ) Counterplaintiff-Appellee and ) Plaintiff-Appellee, ) ) The Honorable (John Busch, ) Moira S. Johnson. ) Judge Presi ding. Counterdefendant-Appellant and ) Defendant-Appellant). )

PRESID ING

JUSTICE

ROBERT E. GORDON d elivere d the opini on of the c ourt: This appeal concerns the legality of a rejection of an arbitration awar d under the mandatory ar

bitration procedure (Supreme Court Rule 86)(155 Ill. 2d R 86) in the Municipal di vi si on of

th e c ir cu it co ur t o f C oo k C ou nt y. Plaintiff s John Busch and Sheb ’tufi Kushma broug ht a pers onal injur

y a ction ag ainst defendant Michael K. Mison, alleging Mison neg ligently ca

used them injuries as a result of an automobile collision. Mison brought a separate personal injury suit against Busch, seekingNo. 1-07-2112

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damage s for injur

ies sustai ned in the same col lision. The

circuit c ourt cons olidated the sepa rate actions f or “purp oses of di scovery and tria l.” Then the conso lidated a

ction was submitted t

o arbitra tion. One consolida

ted awa rd was e ntered. Mison’s la

wyers file d an I llinois Supr eme Court Rule 93(a) (166 Ill. 2d R. 93(a)) r ejection in the circuit court that set off a flurry of motions and responses concerning the question of e xactly what had been r

ejected. That is, did the rejecti on apply

to the Bu sh and Kushma v. Mison lawsuit and the Mison v. Busch lawsuit? Or di d i t a pp ly only

to t heMis on v . B usc

h la wsu it? The circuit court held Rule 93(a) did not require specif ic notices of rejection as to each lawsuit, b ut certif ied the f ollowing question o f law for

an inter locutory appeal p ursuant t o Supreme C ourt Rule 3 08 (155 I ll. 2d R. 308 ): “Whether Illinois Supreme Court Rule 93(a) require s a party who is both a plaintiff and a defendant in two separately filed personal injury lawsuits stemming from an a uto accident, which were consolida ted for p urposes o f discove

ry and tria l, to file s eparat

e notices o f rejection of the separa te arbitr ation awa rds in ord er to preserve his right to proceed to trial in eac h lawsuit.”

BACKGROUND This appeal stems from two separate lawsuits filed on behalf of individuals involved in a two-car motor vehicle collision. On December 30, 2004, B usch and Mison were involved in a motor vehicle collision at the intersection of Kinzie and LaSalle Stree ts in Chicago. Kushma wasNo. 1-07-2112

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a passenger in Busch’s vehic le. On March 10, 2005, Busch and Kushma broug ht a negligence suit ag ainst Mison in the law division of the circuit court of Cook County (la w division suit), seeking damages for personal injuries they sustaine d in the accident. Mison filed a counterclaim for contribution against Busch. The law firm of B everly & Pause represented Mison as the defendant in the law division suit. On June 27, 2006, Mison filed a separate suit against Busch in the municipal division of the circuit court (municipal division suit), seeking damages for personal injuries he sustained in the same collision. The law firm of Burnes & L ibman represented Mison as the plaintiff in the municipal division suit. After Mison filed a motion for consolidation, the trial court consolidated the cases “for the purposes of discovery a

nd trial.” On February

1, 2007, the consolidated case proceeded to mandator y arbitration. Following a hearing, the two of the three arbitrators entered an award finding “in favor of Busch and against Mison for [$8,500] and for Kushma against Mison for [$6,000].” I n the same order, the arbitrators found “against Mison as a plaintiff and f or Busch as a defendant.” The arbitrators rejected all of the counterclaims. As noted, there was only one award. On February

26, 2007, Mison filed a single notice of rejection of the arbitra tion award pursuant to Supreme Court Rule 93(a) using the municipal court number instead of the consolida ted cour t number. Busch, i

n his capa

city as counte rdefen dant in the

law divisi on suit and defendant in the municipal division suit, filed a joint motion to enter judgment on the arbitrators’ award and strike Mison’s rejection of the award, arguing the notice of rejection failed to comply with Supreme Court Rule 93(a) a nd failed to reject the arbitration award ente red in theNo. 1-07-2112

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law divisi on lawsuit . Busch a nd Kushma

filed a motion to ente

r judgme nt on the a

rbitrators’ award entered in their favor in the law division lawsuit. On June 11, 2007, the trial court denied both motions. The trial court also rejected Busch’s interpretation of Rule 93(a) as re quiring specific notices of rejection for e ach arbitration award. The trial court grante d Busch’s motion to certify a question for interlocutory appeal pursuant to Supreme Court Rule 308(a) (155 Ill. 2d R. 308(a) ). ANAL YSIS An interlocutory a

ppeal pursuant to Supreme Court Rule 308 is ordinarily limited to the question certified by the

circuit court. Townsend v. Sears, Roebuck & Co. , 227 Ill. 2d 147, 153 (2007). B ecause

a certif ied quest ion must be

a question of law, we revie w it de novo . Townsend , 227 Ill. 2d at 154. When reviewing a certified question, we answer only the question that has been posed. Applebaum v. Rush University Medica l Center , 376 Ill. App. 3d 993, 995 (2007). In certa

in circumstances, however, we are obligated to go bey

ond the question presented to consider the appropriateness of the orders g iving rise to the appeal. Billerbeck v. Caterpillar Tractor Co. , 292 Ill. App. 3d 350, 357 (1997). Supreme C ourt Rule 9 3(a) pr ovides, in releva nt part: “Within 30 days after the f iling of an award with the clerk of the court, and upon pay

ment to the clerk of the court of the sum of $200 for awards of $30,000 or less or $500 for awa rds greater than $30,0 00, an y party who was presen t at t he arbi trati on hea ring, either in person or by

counsel, may file w

ith the clerk a writtenNo. 1-07-2112

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ward an d request to proce ed to tria l, together with a certificate of se rvice of such notice on all other parties. The filin

g of a si ngle re jection shall be suf

ficient t o enable all parties except a party

who has been debarred from re jecting the award to proceed to trial on all issues of the case w ithout the necessi ty o f each p arty

filing a separa te rejec tion.” 166

Ill. 2 d R. 93(a). The par ties ag ree re solution of

the cer tified que stion depe

nds in par t on what im

pact, if any, the trial cour

t’s consolidation of the two separate lawsuits “for the purposes of discove ry and trial” had on Mison’s rejection of the arbitration award unde r Rule 93(a). Section 2-1006 of the Illinois Code of Civil Procedure (735 I LCS 5/2-1006 (West 2006)) provides, “[a]n action may be seve red, and actions pending in the same court may be consolidated, as an aid to convenience, wheneve r it can be done without prejudice to a substantial right.” Illinois courts have recog nized three distinct forms of consolidation: (1) where several actions are pending involving the same subject matter, the court may stay proce edings in all but one of the cases and determine whether the disposition of one action may settle the others; (2) where several actions involve an inquiry into the same event in its general aspects, the ac tions may be tied tog ether, but with separate docket entries, verdicts and judgment, the consolidation being limited to a joint trial; and (3) where several ac tions are pending which might have bee n brough t as a single action , the cas es may be merg ed into one

action, t hereby losing theirNo. 1-07-2112

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individual identity, to be disposed of as one suit. Northwe st Water Co mm v. Carlo V. Santuc ci,
Inc. , 162 I ll. App. 3d

877, 890- 91 (1987) ; Shannon v. Stookey , 59 Ill. App. 3d 573, 577 (1978). Busch c ontends that beca use the two suits wer

e consoli dated onl

y f or judicia l economy and convenience, Busch and Kushma- -the plaintiffs in the law division suit--were not bound by Mison’s notice of rejection of the arbitration award e ntered only in the municipal division suit. See Ellis v. AAR Parts Trading, Inc. , 357 Ill. App. 3d 723-731 (2005) (beca use the cases were consolidated for discovery only, the Pinol plaintiffs were “not bound by orders entered in the Ellis case ”); Nationwide Mutual Insurance Co. v. Filos , 285 Ill. App. 3d 528, 532 (1996) (cons olid ation done o nly for co nveni ence “d id no t merge the cau ses in to a si ngle su it, o r change the rig hts of the parties, or make t

hose who were par

ties in one

suit parti es in anot

her”); Kassnel v. Village of Rosemont , 135 Ill. App. 3d 361 (1985). Mison counters that the record reflects the consolidation of the law suits resulted in the two separate suits being merged into one a ction and losing their separate identities. Mison contends that because the two suits were consolidated into one action, his notice of rejection was sufficie nt to requ ire all of the issue s in the ca se to proc eed to tr ial. We agree with Mison.
In Northwest Water Comm’n v. Carlo V. Santucci, Inc. , 162 Ill. App. 3d 877, 891 (1987), the court held it was clear “the causes of action herein were consolidated for a muc h broader reason than mere convenience, i.e. , for the purposes of discovery and trial.” The water commission

filed an “ ‘Emer gency Motion *** T o Consolida te Cases, ’ seekin

g to comb ine its action against Santucci with Price’s suit for an acc ounting ‘for purposes of discovery and trial.’ ”No. 1-07-2112

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Northwest Water Comm’n, 162 Ill. App. 3d at 882. According to the motion to consolidate, “ ‘[t]he consolidation of these actions would eliminate a multiplicity of suits, prevent unnece ssary litigation, and avoid duplication of efforts and expense, thereby conserving the court’s time and expediting the disposition of the actions.’ ” Northwest Water Comm’n , 162 Ill. App. 3d at 882. The trial court granted the motion for consolidation, explicitly ordering that the cases were “consolidated for the purposes of discovery and trial.” The appellate court held “[s]uch purposes indicate that the rights of all of the parties would be f inally litigated and se

ttled in one action.” Northwest Water Comm’n , 162 Ill. App. 3d at 891. The rec ord here

clearly reflects the tria

l court c onsolidat

ed the two

separa tely filed suit s into one action that was disposed of by one arbitration award with three distinct findings, not two separate arbitration awards as the c ertified question presupposes. Mison’s motion to consolidate contended that since “both cases arise from the same se t of facts and involve the same witnesses,” both lawsuits should “be consolidated into one .” (Emphasis added.) In re sponse, t he trial court consolidated the law division suit and the municipal division suit “for the purposes of discovery and trial.” We find the trial court’s consolidation order indicates “the rights of all of the par ties would be finally litigate d and settled in one action.” See Northwest Water Comm’n , 162 I ll. App. 3d at 891. Ou

r conclu sion is supported by the fa

ct that the arbitrators entered only one award with three distinct findings, not separate arbitration awards: “We the undersigned arbitrators, having been duly appointed and

sworn (or aff

irmed ), mak e the fo llow ing award .” (Emphasis added.) That is, “award,” not “awards.” Had the lawsuits gone to trial, judicial e conomy would have c alled for one trial, oneNo. 1-07-2112

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jury, and one judg e. Our supreme court has recog nized that “[o]nce the arbitration panel has made its award, the parties must accept or reject the awa rd in its entirety.” Cruz v. Northwestern Chrysler Plymouth Sales, I

nc. , 179 Ill. 2d 271, 279 (1997). Rely ing on Supreme Court Rule 92(c), the
supreme court he ld: “I f none of

the part ies file a notice of rejecti on of the a

ward an d request to proceed to trial within the time specified under the rules, the circ uit court has no real function beyond enter

ing judgment on the award.” Cruz , 17 9 Ill . 2d at 2 79, cit in g 15 5 Ill . 2d R. 92( c) ( “In the even t none of t

he parti es files a

notice of rejecti on of the a

ward an d requests to proc eed to trial within the time required herein, any party there after may

move the court to enter judgment on the award.”) We read Ru

le 92(c) as concl uding tha t any rejecti on of any

part of the awar

d applies to the entire award. In thi s case, M ison’s contentions are tha t his reje ction with

the munic ipal numbe

r only rejecte d the enti

re awa rd. That i s the way

he capti oned his r

ejection . Althoug

h the single arbitration award in the consolidated case containe d three distinct findings, Mison’s notice of rejection specifically

provides that plaintiff, Mison, “rejects the Award of the Arbitra tor’s entered in this cause on February

1, 2007, in favor of the Defendant , and requests a trial before the court.” (Emphasis added.) The notice of reje ction makes no reference to the arbitra tors’ other findi ngs i n the awar d, and we f

ind th at once a

reje ction is fil ed, t he en tire awar d is re jected. We believe that was the intention of the Rule. The following facts support our conclusion that Mison’s attorney s–-Burnes & L ibman--No. 1-07-2112

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intended to reject the entir

e awar d. To rule

otherwis e could r

equire t he filing of many separa te notices of rejection. Mison’s personal injury lawy ers would not have had the authority to reject the arbitrators award on the law division case where Mison is a defe ndant and represented by

insurance counsel. If Mison’s rejection showed the c onsolidated case number, it clearly would have been a valid re jection b ased on the argu ments of a

ll of the pa

rties. Although the certified question is carelessly phrased, we now proceed to answer it as the supreme court has ordered-–“on the mer its.” Our conclusion reaches the certified que stions and beyond it to the trial court’s unde rlying or ders. See Thompson v. Gordon , 221 Ill. 2d 414, 434 (2006) (“The appellate court also did not err in going bey ond the certified question to consider the propriety of the

trial court’s underly

ing order striking Ramisch’s affidavit”). See also Walker v. Carnival Cruise Lines, I nc. , No. 1-07-3538, slip op. at 7 (May 21, 2008) (“However, in the interest of judicial economy and reaching an equitable re sult, a reviewing court may go bey ond the certified question and consider the appropriatene ss of the order giving rise to the appea l”). This court holds that in a case consolidated for discovery and trial, Rule 93(a) is satisfied by a single

notice of rejection that covers any part of the award made in mandatory arbitration proceedings. In addition, I

agree completely

with the special concurrence, and par ticularly with how the special concurrence explained and distinguished Cruz , 179 I ll. 2d at 27 9. Justice G arcia stated in his special concurrence that I interpreted Cruz less broadly than he did. I think we are on the exact same page. I agree with him that “[i]n Cruz , the [supreme] court never addressedNo. 1-07-2112

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the requirements of a rejection notice,” that “the situation in Cruz is not present here,” and that Cruz supports our conclusion that “where a rejection notice of an arbitration award is filed, the notice is a rejection of the award in its entirety .” Slip op. at __ . CONCLUSIO

N
We af fi rm th e d ec is io n o f t he ci rc ui t c ou rt of Co ok Co un ty. Affirmed. WOLF SON, J., disse

nts. GARCI A, J., spec ially

concurs .1-07-2112

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JUSTICE WOLFSON, dissenting: I agree we should reach the issues in this case. Considerations of judicial economy persuade me we should put aside the fact that addressing the certified question directly, on it merits, does nothing to resolve the rejection issue ruled on by the trial court. The certified question assumes the existence of “separate arbitration awards.” There was only one award, with three findings. The majority finesses the precise wording of the certified question to address an issue never before decided by a reported decision in this State. That is, is a mandatory arbitration rejection effective when it clearly is intended to apply only to one of several discrete findings in the arbitration award? I believe the correct answer to that question is no. There is nothing surprising or unexpected about multiple claims being resolved in a single award, as was done here. Illinois Supreme Court Rule 92(b) clearly anticipates that situation: “The award shall dispose of all claims for relief.” “Award” is used in the singular throughout Rule 92, never in the plural. The arbitrators adhered to Rule 92(b) when they framed an award that disposed of all the claims for relief. It was a single award in a case where the law division and municipal1-07-2112

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division lawsuits had been “consolidated for discovery and trial.” That meant “the rights of all the parties would be finally litigated and settled in one action.” Northwest Water Commission v. Santucci, Inc. , 162 Ill. App. 3d 877, 891 (1987). Now, then, can rejecting only one of the three findings be a rejection of the entire award? Once an award is made “the parties must accept or reject the award in its entirety .” (Emphasis added.) Cruz v. Northwestern Chrysler Plymouth Sales,
Inc. , 179 Ill. 2d 271, 279 (1997). That is not what Mison’s lawyers did. I read Rule 92(c) as requiring a rejection to apply to the entire award, not just part of it. A partial rejection is no rejection at all. The rejecting party cannot pick and choose from within the award. The record reflects Mison’s attorneys in the municipal division suit–-Burnes & Libman–-clearly intended to reject only the arbitrators’ finding against Mison as a “plaintiff” and for Busch as a “defendant” when they filed the notice of rejection. That is the way they captioned their notice. Although the single arbitration award in the consolidated case contained three distinct findings, Mison’s notice of rejection specifically provides that plaintiff, Mison, “rejects the Award of the Arbitrators entered in this cause on February 1, 2007, in favor1-07-2112

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of the Defendant , and requests a trial before the court.” (Emphasis added.) The notice of rejection makes no reference to the arbitrators’ other findings in the award. In sum, the following facts support the conclusion that Mison’s attorneys–-Burnes & Libman--intended to reject only the arbitrators’ findings with regard to Mison as plaintiff and Busch as defendant in the municipal division suit, not all of the findings reached by the arbitrators:

! Mison’s attorneys in the law division suit where he was a defendant–-Beverly & Pause–-did not file a separate notice of rejection.

! Mison’s notice of rejection contains only the caption and case number for the municipal division suit filed by Mison; that is Mison as “plaintiff,” Busch as “defendant.” He rejected only the award “in favor of the defendant,” that is, Busch.

! Mison did not include any reference to the arbitrators’ findings with regard to the law division suit or the counterclaims in the notice of rejection.

! Mison did not serve the notice of rejection on Kushma individually or on Kushma’s attorneys in the law division suit.1-07-2112

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Although I agree that all of the claims became part of one case when the separate suits were consolidated for the purposes of discovery and trial, I would find Rules 92(c) and 93(a), read together, require Mison to reject the arbitration award in its entirety, not just one of the arbitrators’ individual findings.
See Cruz , 179 Ill. 2d at 279, citing 155 Ill. 2d R. 92(c). If Mison’s insurance company lawyers wanted to reject the portion of the award that granted damages to Busch and Kushma, they easily could have done so. It takes no great stretch of the imagination to see that Burnes & Libman were not the least bit concerned about a judgment against Mison in his role as defendant in the law division lawsuit. Going before a jury only on the Mison v. Busch claim would increase chances for recovery. I believe that in a case consolidated for discovery and trial Rule 93(a) is satisfied by a single notice of rejection that covers all parts of the award or awards made in mandatory arbitration. But where, as here, there is only one award and only a partial rejection of it, the rejection is a nullity and judgment should be entered on all findings in the arbitrators’ award. Nothing in the relevant Supreme Court rules authorizes piecemeal rejection. We take the rules as we find them. We should not rewrite them to reach a favored result. I respectfully dissent.1-07-2112

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JUSTICE GARCIA, specially concurring. I write separately because I read the supreme court's decision in Cruz v. Northwestern Chrysler Plymouth Sales, Inc. , 179 Ill. 2d 271, 688 N.E.2d 653 (1997), more broadly than Justice
Gordon. I also find words of caution necessary regarding the view of our esteemed colleague in dissent. Justice Wolfson's position, that a rejection notice may be challenged as a nullity where the rejection notice lists one of several findings in an arbitration award, would open the door to more litigation on issues collateral to the claims of the parties. Counsel henceforth seeking to bar rejections would undoubtedly come up with creative arguments to challenge carelessly phrased (or not so carelessly phrased) rejection notices. To open the door to such challenges is, I submit, at odds with the stated objective of mandatory court-annexed arbitration of making litigation less "costly, complicated and time consuming." Cruz , 179 Ill. 2d at 280. The language the dissent quotes from Cruz that " 'the parties must accept or reject the award in its entirety' " (emphasis in original) (slip op. at __ , quoting Cruz , 179 Ill. 2d at 279), is no barrier to our conclusion that the rejection notice here satisfies Rule 93. In Cruz , the court never1-07-2112

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addressed the requirements of a rejection notice . The quoted language comes from the appellate court decision the supreme court determined took the correct approach of making clear to plaintiffs that if the relief sought goes beyond that which the arbitrators awarded, the only recourse plaintiffs have is to reject the award in its entirety. Plaintiffs cannot accept the award with the expectation of obtaining additional relief before the circuit court when judgment is entered on the award. The judgment entered by the circuit court may not exceed the arbitration award; plaintiffs cannot cherry-pick the relief granted in the arbitration proceedings; it is all or nothing. Of course, the situation in Cruz involving plaintiffs is not present here. Nor is the situation present here the mirror image of the
Cruz situation. Here, there was nothing for Mison to cherrypick; there was only one relief available to him--to proceed to trial. I submit, the Cruz statement that an award must be accepted or rejected in its entirety means simply what it says--that where a rejection notice of an arbitration award is filed, the notice is a rejection of the award in its entirety. It is of no consequence that the rejection notice lists one, none or all of the findings in the award. This conclusion is consistent with the provision in Rule 93 that "[t]he filing of a single rejection1-07-2112

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shall be sufficient to enable all parties *** to proceed to trial *** without the necessity of each party filing a separate rejection." 166 Ill. 2d R. 93(a). That the rejection notice here, however carelessly written, is a rejection sufficient to enable Mison to proceed to trial is in line with the purpose of the mandatory court-annexed arbitration system, meant as an alternative to a civil trial, which a litigant should not be denied simply because his counsel lists the one finding in the arbitration award that pertains to his client. This leads to my last point. Justice Wolfson seeks to prove too much in his claim that "Mison's attorneys *** intended to reject only the arbitrators' findings with regard to *** the municipal division suit." (Emphasis added.) Slip op. at __. That is a conclusion the dissent draws. Reasonable minds differ as to whether that is the only conclusion that can be drawn based upon the facts the dissent marshals. Irrefutable, however, is the clear intent manifested by Mison's rejection notice to proceed to trial.REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT (Front Sheet to b e attac hed to eac h Opinion) Please use the ] foll owin g for m: ] ] JOHN BUSCH an d SHEB’ TUFI KUSHMA, ] ] Plaintiffs, ] v. ] ] MICHAEL K. MISON, ] Defendant- Appell ees and ] Counterpl ainti ff- Appell ee and ] Plainti ff-Appell ee, ] ] (John Busch, ] ] CounterDefend ant-Appel lant and ] Defenda nt-Appellant). Complete ] TITLE ] of Case. ] Docket No. ] No. 1-07-2112

] Appellate Court of Ill

inois COURT ] First District, First Division

] ] SEPTEMBER 15, 2008 Opinion File d ] ( Month, Day and Year ) JUSTICES ] PRESIDING JUSTICE ROBERT E. GORDON delivered the

] opinion of the court . ] WOLFSON,

J., dissent s. ] GARCIA, J., specially conc urs. ] APPEA L from the ] Lower Co urt and Tria l Judge(s)in form indi cated Circuit Court ] in mar gin: of Cook County; ] Appeal from the Circuit Court of Cook County. the Hon:______ ] Judge Pr esiding ] Honorable M oira S. Johns on, Judge P residing . For AP PELLANTS ]Indicate if attorney represents APPELLANTS or John Doe of ]APPELLEES and include attorneys of counsel. Chicago. ]Indicate the word NONE if not represented. For AP PELLEES, ]-------------
---------------------------------------------------------------------- ------------ Smith and ] Crisham & Kubes, L td. Smith, of ] Chicago, Illinois 60602 Chicago. ] Attorneys for Appellant, John Busch Brown, ] Attn: Thomas M. Crisham; Jean M. P redergast; of Counsel. ] and Clare J . Quish

] OF COUN SEL Also add atty. ] for third party ] Beverly & Pause appellants ] Chicago, Illinois 60602 or appelle es. ] Attorneys for Appellee

] Attn: Jus tin D. Wine ] OF COUN SEL ] ___________________(USE REVERSE SIDE IF NEEDED_________________________________