SIXTH DI VISI ON March 23, 2007

No. 1-05-1332

MARY SPENCER, ) ) Appeal from the Plaintiff -Appella nt, ) Circuit Court of

) Cook County

, Illi nois. v. ) ) No. 04 CH 08975 THE RYLAND GROUP, I NC., ) d/b/a Ry land Home s, ) Honorab le ) Patrick McGann Defendant-Appellee. ) Judge Presi ding. ) JUSTICE JOSEPH GORDO

N deliver ed the opi nion of the

court: Plaintiff, Mary Spence

r, appeals from an order of the circ uit court dismissing her complain t pursuan t to section 2-615 of

the Code o f Civil Proc edure ( 735 I LCS 5/2 -615 (Wes t 2004)). In her complaint, Spence r alleged that the arbitrator in a dispute betwe en her and defendant, The Ry

land Group, Inc. (Ry

land), exceeded his powers by not awarding her attorney fees as require d by

an agr eement o f sale be

tween he r and Ry land. The circuit c ourt held

that, although it disagreed with the arbitrator' s decision not to award attorney fees, it was prohibited by stare dec isis from amending that award. For the reasons that follow, we reverse and re mand. I. BACKGROUND On June 19, 2 003, Spenc er ente red into a n agre ement of

sale (sa les agr eement)with Ryla nd for the purchas e of a ne

w town home

in Loc kport Illinois. At t

hat time, Sp encer p aid Ryland $6,000 in earne st money. Parag raph 10 of the sales agreeme nt, entitled " Arbitration, " provided : "[a]ny

controve rsy , claim or

dispute a rising o ut of or in any way relating to thisNo. 1-05-1332

2

agreement, the property

, your purcha se of the property or our construction of the home shall be settled by binding ar

bitration with the American Arbitration Association." Parag raph 20 of the sales agreement, entitled " Attorney s' Fee s and Costs ," provi ded: "[t]he non-pre vailing party in any procee ding to e

nforce or conte st any

provision (s) of thi s Agre ement of Sale shal l pay

all reasonable costs, attorney 's fees and expenses incurred by the prevailing party ." On Septem

ber 18, 2 003, Spenc er rec eived a l etter fr om Ry land, cla iming tha t she was i

n default of the sales agreeme nt and that her earnest money was being retained as damag es. On Novembe r 22, 2003 , Spence

r submitte d a deman

d for ar bitration in which she sough

t $6,000 a s a refund of her earnest money , $2,000 for her inconvenience and aggravation; punitive damages of up to $10,0 00, and a

ttorney fees an d costs pursuant to pa

ragra ph 20 of the

sales ag reemen t. On March 16, 2004, an arbitrator from the Americ an Arbitration Association (AAA) issued a written award, in which he ordered Ry land to return Spencer's $6,000 in earnest money and pay $150 in inte

rest. The arbitra tor further state d: "The administrative fees and expenses of the [AAA] totaling $500.00 and the compensation and expenses of the arbitrator totaling $750.00 shall be borne by [Ryland]. Therefore, [Ry land] shall pay to [Spencer] the sum of $875.00, repr esen ting [Spencer' s] sha

re of depo sits p revi ously

adva nced the [A AA].

*** This Award is in full settlement of all claims submitted to this Arbitration. All claims not expressly grante d herein are, hereby denied." The arbitration award did not mention attorney fees or specifically

designate Spencer as theNo. 1-05-1332

3

"prevailing party ." Spencer requested reconsidera tion and modification of the award based on parag raph 20 of the sa les agr eement a nd on the f

ederal Equal Cre dit Opport

unity Act (ECO A) (15 U. S.C. §1691 et seq . ( 20 00 )) , b ot h o f w hi ch , s he ar gu ed , e xp re ss ly e nt it le d h er , a s t he pr ev ai li ng pa rt y, to attorney fe es and costs. The arbitrator denied Spencer' s request for reconsideration on March 31, 2004. On June 3, 20 04, Spenc er filed a timely, three- count com plaint in the circu

it court. Only count I is at issue in this appeal. I n that count Spencer requested that the circuit court vac ate the arbitration award as to attorney fees pursuant to section 12(a)(3) of the Unifor m Arbitration Act (Act) (710 ILCS 5/12(a)(3) (West 2004)) because the arbitrator e xceeded his powers by not adhering to the parties' ag reement. Ryland f

iled a motion to dismiss the complaint under section 2-615 of the Code (735 ILCS 5/2-615 (West 2004)), arguing that Spencer could not show that the arbitrator committed a gross mistake of fact or la w that appeared on the face of the award. On February

18, 2005, the circuit court issued a written memorandum and order in which it gran ted Ry land's m otion to dism

iss. The c ourt opine d that bec ause Spe ncer wa s succes sful in obtaining a retur n of her e arnest money , she qua lified as a preva iling pa rty and, ther efore, should have been additionally

awarded attorney

fees pursuant to paragraph 20 of the sales agreement. However, the court held that despite its interpretation of Spencer 's contractual right to attorney fees, it could not overturn the arbitration award due to the r ule stated in Perkins Re stauran ts Operating Co. v. Van Den Ber gh Foods, Co. , 276 Ill. App. 3d 305, 311, 657 N.E.2d 1085, 1089 (1995), t hat "[a]s l ong as the arbitr ators'interpre

tation of t he agr eement is a reasonably

possibleNo. 1-05-1332

4

one, courts will not set aside the award. *** A court is not empowered to ove rturn or change an arbitration award even if a court would have reached a different conc lusion ***." The court noted tha t Perkins was factually

indistinguishable and determined that it was, therefore, bound by stare dec isis to dismiss Spencer's complaint. On appeal, Spencer contends that circuit court e rred in dismissing count I of her complaint on the basis of stare dec isis because Perkins is, in fact, distinguishable from the instant case. Spencer also contends that even if we do not distinguish the f acts of Perkins from those in this case, we should, nevertheless, choose not to follow that case on public policy grounds. Ryland c ontends that the circuit court was correct to dismiss the case bec ause there was no gros s mistake o f fact or law app earing on the fa ce of the arbitra tion awar d. Ry land also contends that Spencer was not entitled to attorney fees because she did not qualify as a prevailing pa rt y. We note that the record on appeal and the parties' briefs mention Spencer's claims under the ECOA ( 15 U.S.C. §1 691(b) ( 2000)) a nd the Illinois Cons

umer Fr aud and D eceptiv e Busine ss Practices Act (815 IL

CS 505/1 et seq. (West 1998)). However, because Spence r states in her reply brief tha t she is not p

ursuing these cl aims on ap

peal, we need not a

ddress them. II. AN ALYS IS A motion to dismiss under section 2-615 of the Code (735 IL CS 2-615 (West 2004)) challenges the legal suff

iciency of the

complaint by alleging defects on its face. City of C hicago v. Beretta U.S.A. Corp. , 213 Ill. 2d 351, 364, 821 N.E.2d 1099, 1110 (2004). We review de

novo the dismissal of a complaint under section 2-615. Wakulich v. Mraz , 203 Ill. 2d 223, 228,No. 1-05-1332

5

785 N.E.2 d 843, 846 (2003). I n review ing the s ufficie ncy of a comp laint, we

accept as true a ll well-pleaded facts and all reasonable inferences that may

be drawn from those facts. Jarvis v. South Oak Dodge, Inc

. , 201 Ill. 2d 81, 86, 773 N.E.2d 641, 645 (2002). I n addition, we construe the allegations in the complaint in a light most favorable to the plaintiff. Wakulich , 203 Ill. 2d at 228, 785 N.E.2d at 846. Courts encourage the settlement of disputes by arbitration and judicial review of arbit ratio n award s is, accord ingly, far more r estri cted t han ap pella te revi ew of a t rial c ourt's decision. Garver v. Ferguson , 76 Ill. 2d 1, 8-9, 389 N.E.2d 1181, 1183-84 (1979). I ndeed, wheneve r possible , courts should con strue an arbitra tion awar d in a manner that u

pholds its validity. Rauh v. Rockford Products Corp. , 143 Ill. 2d 377, 386, 574 N.E.2d at 641 (1991). Even where an arbitrator commits gross e rrors of judgment in law or a gross mistake of fact, a court should not vacate an arbitration award unless the mistakes or errors are apparent on the fa ce of the arbitration award. Rauh , 143 Ill. 2d at 393, 574 N.E.2d at 644. However, a n arbitrator does not have authority to ig nore the plain language of the contract or to interpret unambiguous contract language. Shearson Lehman Br others, Inc. v. Hedric

h , 266 Ill. App. 3d 24, 29, 639 N.E.2d 228, 232 (1994). The Act describes the specific g rounds on which a court can vacate an arbitration award. See 710 I LCS 5/12(a) (West 2004). Specifically, as relevant to this case, section 12(a)(3) provides that a court can va cate an arbitration award wher e "[t]he arbitrators exceed[] their powers." 710 ILCS 5/12(a)(3) (West 2004). Spencer contends that the a rbitrator here e

xceeded h

is powers by d isrega rding the plain langua ge of the sales c ontract

that the " non-pre

vailing party " would p ay

"all re asonable

costs,No. 1-05-1332

6

attorney' s fees and expenses incurred by the prevailing party ." In that reg ard, Spencer contends that bec ause the

arbitra tor awar ded her t he $6,000 in earne st money

she requ ested al ong with interest, and because the arbitrator asse ssed the costs of the arbitration to Ryla nd, she must be consider ed the pr evailing party . There fore, a

ccordin g to Spen cer, the arbitra tor excee ded his powers by ig

noring the clear mandate of the sa les agreement that the prevailing party be a

warded attorne y f ees. As noted, the

circuit c ourt esse

ntially agree d that Spen

cer wa s the pre

vailing party and should have been awarded attorney fees but, nevertheless, determined that the prec edent set in Perkins required that the arbitration award stand. In Perkins , the plaintiff restaurant purchased a used ba kery oven f

rom defendant. Perkins , 276 Ill. App. 3d at 307, 657 N.E.2d at 1086. As part of the tra nsaction, the parties agreed to arbitrate any

disputes that arose between them and that, if a dispute did occur, the nonprevailing party

would pay any

attorney fe es incurred by the prevailing party

. Perkins , 276 Ill. App. 3d at 307, 657 N.E.2d at 1086. Specifically , the contract stated at section 8.16: " 'I n the event either party

must take action to enforce any term of this Agreement, the non-prevailing party shall reimburse

the prevailing party

for any c osts it incurs in such enforcement action, including reasona ble attor ney fees an d court c osts, whether or not a lawsu it is filed. ' " (E

mphasis omitted.) Perkins , 276 Ill. App. 3d at 307, 657 N.E.2d at 1086. The ag reement did not define the term "prevailing party ." Plaintiff subsequently broug ht claims against defendant at an arbitration for breach of contract, bre ach of express and implied warranty , fraud and negligent misrepresentation in violation of the Tennessee Consumer Protection Act. Perkins , 276 Ill. App. 3d at 307, 657 N.E.2d at 1087. Plaintiff sought $428,911 in specific damages a nd over $1No. 1-05-1332

7

million in total damages. Defendant "countercla imed," requesting the arbitration panel to re form the contract to reflect that it was "as is" in nature. Perkins , 276 Ill. App. 3d at 307, 657 N.E.2d at 1087. Arbitration proceedings were he ld over a period of five day s and, on the last day, the arbitration panel asked the parties to provided additional briefs re garding the meaning of the words " prevail ing par

ty" and "non-preva

iling pa rty " as use d in section 8.16 of the agre ement. Perkins , 276 Ill. App. 3d at 307, 657 N.E.2d at 1087. After both par ties submitted briefs, the arbitration panel ordered defendant to pay plaintiff $10,000 and denied defendant's counter claim. Perkins , 276 I ll. App. 3d

at 306, 65 7 N.E.2d a

t 1087. As t

o fees a nd costs, t

he pane l stated: " 'Neither attorney

s' fees nor costs shall be reimbursed by either party

to the other in this matter based on the terms and cond itions of se ction 8.16

of the [ag

reemen t]. There fore, e ach par

ty shall bear its own legal fees and cos ts.' " Perkins , 2 76 Ill . A pp . 3 d a t 3 08 , 6 57 N. E. 2d at 10 87 . La st ly, the pane l stated: " 'This Award is in f ull settle ment of a ll claims a

nd counte rclaims s ubmitted to this arbit ration.' " Perkins , 276 Ill. App. 3d at 308, 657 N.E.2d at 1087. The circ uit court denied plaintiff's application to modify or vacate the award. Perkins , 276 Ill. App. 3d at 306, 657 N.E.2d at 1086. On appeal, plaintiff argued that the ar bitrators exceeded their powers by failing to award fees as provided in section 8.16. Perkins , 276 Ill. App. 3d at 307, 657 N.E.2d at 1087. Plaintiff contended that the term "prevailing pa rty" wa s unambiguous and that the fact that it was awarded $10,000 cl early meant that it q ualified as the "prevaili ng party." Perkins , 276 Ill. App. 3d at 307, 657 N.E.2d at 1087. The appellate court first discussed the strong policy favoring the finality

ofNo. 1-05-1332

8

arbitra tion, notin

g: "If *** the [ar

bitration] award is

within the

submission a

nd contai ns the hone st decision of the arbitrators, after a full and fa ir hearing, a court will not set it aside for errors of fact or law. ( Rauh , 143 Ill. 2d at 394-95.) 'A c ourt may not set aside an arbitration award merely because the court would have reac hed a different resul t.' [ Water Pipe Extension, Bureau of Enginerring L aborers' L ocal Union 1092 v. Ci ty of Chi cago , 238 Ill. App. 3 d 43, 46, 59 2 N.E.2d 48 3 (1992)]. " Perkins , 276 Ill. App. 3d at 310, 657 N.E.2d at 1089. The cour t then af firmed the circu

it court: "The fee decision by

the arbitrators is presumed valid and cannot be vitiated by even g

ross mistakes in law. As long as the arbitrators' interpr etation of the agreement is a reasona bly possible one, courts will not set aside the award. Here, the arbitr

ators, after be ing full

y br iefed on the issue by b oth partie s, determined that neither party was entitled to attorney f ees. A court is not empowered to overturn or chang e an arbitration award even if a c ourt would have reached a different conc lusion from the language of section 8.16 and the legal definitions advanced. Section 8.16 w as prope rly present to and con

clusively decide by the arbitrat ion panel." Perkins , 276 Ill. App. 3d at 311, 657 N.E.2d at 1089. While acknowledging that the cost and fee provision in Perkins is virtual ly id entical t o that in this

case, Sp encer neverthe less cont ends that Perkins is disting uishable . Spence

r firstNo. 1-05-1332

9

points out that the arbitrators in Perkins made an express determination that neither party was entitled t o attorne y f ees or c osts, while , here, t he arbit rator ma de no ref erence whatsoe ver to attorney fe es in his award. Spencer also points out that, in Perkins , the arb itrators specific ally asked the parties to address the meaning of " prevailing party ." Thus, the Perkins arbitration panel' s subseque

nt denial of costs a

nd fees a mounted to

a tacit de terminat ion that, d

espite its $10,000 award to plaintiff, neither party qualified as a prevailing party . In contrast, Spencer points out that, here, the arbitrator never requested g uidance regarding

the meaning of "prevailing party ." Moreover, Spencer contends that the a rbitrator in this case must have considered her the prevailing par ty because

he awarded her the $6,000 she reque sted as well as the costs of the arbitration. In that re gard, Spencer further points out that in Perkins , plaintiff sought o ver $1 mill ion and wa s award ed only $10,000, w

hile, her e, Spenc er was a

warded the full amount she requested as a refund of her earnest money , but was merely de nied additional compensa tion for h er incon

venienc e and pun

itive dama

ges. While we a

gree t hat Perkins is factua

lly d istinguishable for the re asons Spe ncer poi nts out, there is a remarkably greater, dispositive difference between Perkins and th e in st ant cas e. In Perkins , t he ar bi tr at io n p an el de te rm in ed th at ne it he r p ar ty q ua li fi ed as th e " pr ev ai li ng pa rt y" and, accordingly, awarded neither party costs or attorney f

ees. Thus, regardless of whethe r a court would agree with those arbitrators' determination of who could qualify as a "prevailing party," the arbitration award was consistent with the contract, which r equired that the prevailing party be r eimbursed for costs and fees, and was, there fore, not subject to vacature. See Rauh , 143 I ll. 2d at 39 3, 574 N.E .2d at 644 . In c ontrast, here, the arbitr ator awa rded Spe ncer the costsNo. 1-05-1332

10

of arbitration as indicated by paragraph 20 but did not, correspondingly, award he r attorney f

ees as required by

that very same

contractual provision. As noted, the parties' sales agr eement stated that the "non-prevailing pa rty" would pa

y "reas onable c osts, attor

ney's fee s or expens es incur red by the prev ailing p arty ." This pr ovision is the basis for both costs and fees. The provision does not distinguish or leave room for any distinction to be made with respect to costs, as opposed to fees. I t is an all or nothing provision. Either one preva

ils and the

refore becomes entitled t o fees, a s well as c osts, or do es not pre vail and is the refore not entitle d to eithe

r costs or fees. U nder this sales ag reemen t, there is no basis whatsoever upon which to provide for the one without also providing f or the other. See Perkins , 276 Ill. App. 3d at 311, 657 N.E.2d at 1089 ("As long as the arbitrators' interpretation of the agree ment is a r

easonab ly p ossible one, court s will not se t aside the

award" ); Inter-City

Gas Corp. v. Boise Cascade Corp , 845 F.2d 184, 187 (8th Cir. 1988) ("the arbitrator may not disreg ard or mo dify

unambig uous contr

act prov isions. [Cita

tion.] I f the ar

bitrator 'inter prets unambiguous language in any way diffe

rent from its plain meaning, [the arbitrator] amends or alters the agreement and ac ts without authority.' [Citation.]"). However, the arbitrator awarde d costs and denied attorney fees, blatantly ig

noring the undisputa ble fact that unde

r the sale s agre ement the

award o f fees a

nd costs tr

avel in ta ndem, without any basis for diffe rentiation. If a party

is deemed to be the prevailing party so as to meet the award of costs, he ipso facto is the prevailing party for fees as well. Thus, the award shows on its fac e that the

arbitra tor was not attemptin

g to foll ow the sa

les agr eement, but was sim

ply imposing his own compromise arbitrarily , without the semblance of contractual authorization.No. 1-05-1332

11

See Shearson , 266 Ill . App. 3d at 2 9, 639 N.E.2 d at 23 2, quo ting Inte r-City , 845 F.2d at187-88 ("The ultimate award must be 'g rounded on the parties' contract' and arbitrators do not have the authority to ignor e plain la nguag e and alt

er the a greement"); Rauh , 143 Ill. 2d at 391-92, 574 N.E.2d at 643, quoting M. Pirsig, Some Comments on Arbitration Legislation and the Uniform Act, 10 Vand. L. Rev. 685, 706 (1957) (" '[T]he question for the court is whether the construction of the

contract made by

the arbi trator is a reasonably

possible one that c an serio usly be made ***. Stated affirmatively , if all fair and reasonable minds would agre e that the construction of the contract made by the arbitrator was not possible under a fair interpre tation of the contract, then the court would be bound to vacate or r efuse to confirm the award' " ). Ryland, neverthe less, contends that, like in Perkins , Spencer is not entitled to attorney fees because she was not the preva iling party. Spec ifically, Ry land contends that Spencer cannot be considered the prevailing party because the arbitration award simply returned the parties to the same position they were

in prior to the sales agreement without awarding Spencer any

additional compensation. The dissent in this case makes a similar averment, that although Spenc er prevailed in obtaining the return of her ea rnest money, she did not pre vail in her claims for compensatory a

nd punitive damages. In tha t regard, the dissent avers that since both par ties won and lost claims – Ryland winning in the sense that it did not have to pay compensator y or pu ni ti ve da ma ge s – ne it he r p ar ty c ou ld be co ns id er ed th e p re va il in g p ar ty. While we note that several courts have defined " prevailing party " in such a way that would clearly inc lude Spencer (see Grossinger Motorcorp, I nc. v. American National Bank & Trust Co. , 240 Ill. App. 3d 737, 753, 607 N.E.2d 1337, 1348 (1992) ("A party ca n be consideredNo. 1-05-1332

12

a 'prevailing party

' for the purposes of awarding fees when he is successful on any significant issue in the action and achieves some benefit in bringing suit [citation] *** or by obtaining an affirmative recovery . [Citation.]"); see also J.B. Esker & Sons, I

nc. v. Cle -Pa's Pa

rtnersh ip , 325 Ill. A pp. 3d 276, 280-81, 7 57 N.E.2d 1271 (200 1); Kel-Ke ef Enter prises, I nc. v. Qua

lity Components Corp. , 316 Ill. App. 3d 998, 1021, 738 N.E.2d 524 (2000)), the inconsistency in the instant arbitration award ultimately makes that determination irrelevant to our analy sis. As noted, it appears that the arbitrator considered Spence r the prevailing party

since he awarded her $6,000 as a refund of her earne st money as well as the c osts of arbitration. Thus, considering Spencer the prev ailing p arty , the arb itrator' s failure to award attorne y f ees was inconsiste

nt with the parties' agree

ment to award both costs and fees to the prevailing party . However, even if the arbitrator did not consider Spencer the prevailing party, the award would similarly be inconsistent with the parties' agreement in that it would have the n, in contradiction to paragraph 20, provided costs to a nonprevailing party . Thus, although in the context of arbitration, the determination of whether a party can be said to have prevailed may well be solely within the arbitra tor's pu rview wi thout bein

g subjec t to revie w by a court, the dispos itive que stion her e is not whether Spencer prevailed, but whether the arbitrator exceeded his powers by ignoring the clear la nguag e of the p arties'

contract. As noted , since the arbitr ator awa rded costs pursua

nt to the parties' sales agre ement, he was acting outside of his authority in not also awarding attorney fees. See Shearson , 266 I ll. App. 3d at 29, 639 N.E.2d a

t 232; Inte

r-City , 845 F.2d at 187-88. The dissent, however, contends that there is no error a pparent on the face of the arbitra tion awar d becau se para

graph 20 of the s ales ag

reemen t can be r ead in suc h a way as toNo. 1-05-1332

13

apply solely

to "attorney

fees," "attorney

cost" and "attorney

expenses," but not to arbitration costs. The

dissent fu

rther c ontends that since

such a re ading is

plausible , the sale s agre ement is ambiguous and, therefore, can only be interpreted by

the arbitrator. See Nagle v. Nadelhoffer, Nagel , Kuhn, Mit

chell, Mo ss & Saloga, P.C. , 244 Ill. App. 3d 920, 930, 613 N.E.2d 331, 338 (1993) ("The arbitrator, not the court, is the entity designated to interpret ambiguities in the contr act"), citi ng Donaldson, Lufkin & Jenrette Future s, Inc. v. Barr, 124 Ill. 2d 435, 448, 530 N.E.2d 43 9 (1988). We disag ree; pa ragra ph 20 is not a

mbiguous

. As noted, parag

raph 20 o f the sale s agre ement sta tes in its e

ntirety : " Attorneys'

Fees and Costs. The nonprevailing party in any proce eding to enforce or contest any provision(s) of the Agreement of Sale shall pay all reasonable costs, attorney 's fees and expenses incurred by the prevail ing par

ty. " When re ad out of c ontext, the title of th is parag raph, by itself, c ould conceiv ably

conform to the inte

rpreta tion the dis sent sug gests, t hat, with r

egard to costs, only attorney 's costs are invoked to the exclusion of any other type of c osts. However, there is no conceivable way

that such an interpretation could be imposed on the substantive body of that paragra ph. Th e paragr aph fi rst re fers t o "all reason able co sts, " and on ly then re fers t o "att orney's fees." Thus, the costs anticipated by this paragraph are not limited to those specifically involving an attor ney . Rather, the para

graph clearly imparts that all costs are to be paid to the prevailing party by the nonprevailing party

with the sole qualification on those costs being that they are reasonable. This reading comports with the plain lang uage of the parag

raph as well as with the rest of the contra

ct (see gener ally 11 R. L ord, Williston on Contra cts §§32:3 , 32:4, 408 -20 (4th ed. 1999) ); the diss ent's in terpretation doe s not.1-05-1332

15 III. CONCL

USION Having determined that the arbitrator' s award in this case is facially inconsistent with the unambig uous lang uage o f the par

ties' c ontract , we nee d not addr ess Spenc er's a

dditional p

ublic policy arg uments. For the foregoing re asons, we reverse and remand for proceedings consistent with this opinion. Reversed and remanded. McBRI DE, J. conc

urs. JUS TICE CAH ILL, dissent ing: I re spectfu

lly d issent. The majority conc ludes that error is apparent on the face of the award because the arbitrator assessed arbitration costs but not attorney fees. This is correct if parag raph 20 of the agreement is read to gove rn not only attorney

fees, costs and expenses but arbitration costs as well. But paragraph 20 ca n be read as governing

only "attorne

y fees," "attorney

costs" and "attorney expenses," not arbitration costs. Paragraph 10 of the a greement, which addresses the topic of "Arbitration," imposes no restrictions on how an arbitrator is to determine arbitration costs. Nor does paragraph 10 mention preva iling or nonprevailing parties. I t is not

unreasonable, in

reading parag raphs 10 a

nd 20 tog ether, t

o conclud e that the arbitra tor must assess the costs, expenses and fees of attorney s to the prevailing party

but has no constraints on the assignment of arbitration costs. I am no t s ug ge st in g t ha t t hi s r ea di ng is as so ph is ti ca te d a s t ha t t en de re d b y th e m aj or it y; only that the lang

uage of the contract permits both rea dings and the possibility that an ar bitrator1-05-1332

16

could fin d an ambig

uity within the

agree ment itsel f. Where

there is a mbiguity in a contr

act with an arbit ration c lause, the arbitr

ator is de signate d to interp ret the ambig

uity

. Nagle , 244 Ill. App. 3d at 9 30, ci ting Donaldson, Lufkin & Jenrette Future s, Inc. v. Barr, 124 Ill. 2d 435, 448, 530 N.E.2d 439 (1988). If this is so, the arbitrator' s decision to assess arbitration costs but not attorney fe es is not facially inconsistent. The a rbitrator was free to interpret the ambig uous contract as long as reasonable minds could a gree and there wer

e no gross errors of law or fa ct. See Rauh v. Rockford Products Corp. , 143 Ill. 2d 377, 393, 574 N.E.2d 636 (1991).. Perkins Restaurants Operating Co. v. Van Den Be rgh Foods Co. , 276 Ill. App. 3d 305, 657 N.E.2d 1085 (1995), is factually and legally

analogous to this case. I n both, a sales agreement between the pa rties provided that disputes would be submitted to binding arbitration and that the nonprevailing party would reimburse the prevailing party for attorney

fees. In both, the arbitrators made a monetary award to the plaintiff but did not designate either party as the prevailing party . In neither case did the a rbitrators award attorney

fees to either party . There, as here, the plaintiff appealed, maintaining that, as the prevailing party , it was entitled to attorney fees on the grounds that the arbitrators excee ded their powers by failing to award attorney fees according to the agre ement. In both cases, the plaintiffs re ceived some but not all of the money they sought. Spenc er cannot distinguish Perkins by a rguing that, with

the retu rn of her earnes t money, she must be consider ed the prevailing party

because she received all the re lief she sought. In fact, just as the plaintiff in Perkins , she did not receive all the relief she sought. Here, Sp encer prevaile d in her pu rsuit of he

r earne st money

and arbi tration c osts but lost on her claims for compensatory and punitive damages. Ry land prevailed in that it was not1-05-1332

17

required to pay

Spencer compensatory

or punitive damages but was defeated in its eff ort to keep Spencer's earnest money

as damages for default. B oth parties won and lost on claims. Under the reasoning in Perkins , neither Spencer nor Ry land was the prevailing party

. Perkins , 276 Ill. App. 3d at 311. “A court is not empowered to overturn or chang e an arbitration award even if a c ourt would have reached a differ ent conclusion from the language of [the agreement] and the legal definitions advanced.” Perkins , 276 Ill. App. 3d at 311. The majority and I agr ee that our review of th e r ec or d s ho ul d b e i nf

or me d b y Rauh and Perkins . If "we fin d that the arb itrat or's interpre tation of t he *** contract is

a reasonably

possible one that c an serio usly be made w

ithin the contex t in which [ the parties ] entered th e contract" ( Rauh , 143 I ll. 2d at 39 2), we should affirm. The majority

relies on the same language to reverse. But the majority analysis, as sound as it is, str

ikes me a s de novo , with little sympathy for the deference we a

re asked to accord a "reasonably

possible" interpretation of the arbitrator. The judg ment of the

circuit c ourt, re

ndered r eluctan tly b ut corre ctly

in adher ence to Perkins , should be affirmed.