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                                                                             Date: 2019.08.12
                                  Appellate Court                            11:35:07 -05'00'




             Brookner v. General Motors Corp., 2019 IL App (3d) 170629



Appellate Court       ERIC BROOKNER, Plaintiff-Appellant, v. GENERAL MOTORS
Caption               CORPORATION; WEST JEFF AUTO SALES, LLC, d/b/a Hawk
                      Cadillac; and U.S. BANK, N.A., Defendants (West Jeff Auto Sales,
                      LLC, d/b/a Hawk Cadillac, Defendant-Appellee).



District & No.        Third District
                      Docket No. 3-17-0629



Filed                 May 22, 2019



Decision Under        Appeal from the Circuit Court of Will County, No. 17-L-240; the Hon.
Review                Raymond E. Rossi, Judge, presiding.



Judgment              Affirmed.


Counsel on            William G. Hutul, of William G. Hutul, P.C., of Carol Stream, Julie L.
Appeal                Simpson, of Simpson Law Group, LLC, of St. Charles, and Dmitry N.
                      Feofanov, of ChicagoLemonLaw.com, P.C., of Lyndon, for appellant.

                      Steve M. Varhola and Mark M. Lyman, of Lyman Law Firm, LLC, of
                      Chicago, for appellee.
     Panel                     PRESIDING JUSTICE SCHMIDT delivered the judgment of the
                               court, with opinion.
                               Justice Holdridge concurred in the judgment and opinion.
                               Justice McDade dissented, with opinion.


                                               OPINION

¶1        The plaintiff, Erik Brookner, filed a civil complaint against several defendants, including
      the only defendant that is a party to this appeal, West Jeff Auto Sales, LLC, d/b/a Hawk
      Cadillac (dealership), based on Brookner’s purchase of a vehicle. The dealership filed a motion
      to compel arbitration, which the trial court granted after finding Brookner signed an arbitration
      agreement as part of the vehicle purchase. The court stayed all further proceedings. Brookner
      appealed. On appeal, he challenges the court’s decision to grant the motion to compel
      arbitration. We affirm.

¶2                                                FACTS
¶3        In March 2017, Brookner filed a civil complaint alleging, inter alia, that the dealership was
      liable for breach of written warranty, breach of implied warranty, and a violation of the
      Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 2014)).
      The complaint alleged that on October 17, 2015, Brookner purchased a new 2016 Cadillac
      Escalade from the dealership for $84,000. However, he claimed that the dealership gave him a
      2015 Cadillac Escalade instead. This vehicle had various nonconformities and defects,
      including engine problems. Further, the complaint alleged that the dealership committed
      intentional and willful fraud by forging Brookner’s signature on documents related to the 2015
      Escalade.
¶4        Documents attached to the complaint included a retail installment contract dated October
      17, 2015, for a 2016 black Escalade. Also included were service invoices dated December 20,
      2016, and February 7, 2017, for a 2015 black Escalade. The vehicle identification number
      (VIN) in the installment contract for the 2016 Escalade differed from the VIN in the service
      invoices for the 2015 Escalade.
¶5        The dealership filed a motion to compel arbitration and/or dismiss the complaint and stay
      further proceedings. The dealership alleged that Brookner’s civil complaint was filed in
      contravention of an arbitration agreement that he signed on October 17, 2015. The dealership
      attached a copy of the arbitration agreement to the motion. The agreement essentially stated
      that if any dispute arose over the vehicle, such dispute would go to an arbitrator and any court
      proceedings would be stayed. The arbitration agreement contained a signature above the name
      “Eric R. Brookner” but was not signed on behalf of the dealership.
¶6        Brookner then filed a motion requesting an evidentiary hearing on the validity of the
      arbitration agreement. He alleged that the signature on the document was not his, and he did
      not give anyone the authority to sign his name on his behalf. Brookner asserted in the affidavit
      attached to the motion that he had signed purchase documents for a 2016 Escalade including a
      retail installment contract, order for a motor vehicle, odometer statement, and sales tax
      transaction return. In the lower left hand corner of the order for motor vehicle it reads: “I HAVE
      READ, SIGNED AND RECEIVED COPIES OF THE ARBITRATION RIDER *** WHEN

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       I SIGNED THIS ORDER AND AGREE THEY ARE PART OF THIS ORDER.” Brookner’s
       initials appear underneath this language.
¶7          Brookner also filed a motion for a protective order and to compel the dealership to produce
       original documents. Brookner alleged that the dealership told him that he had signed
       documents related to a 2015 Escalade and that U.S. Bank, N.A., delivered copies of these
       documents to him. He alleged that the signatures on those documents were not his.
¶8          In his response to the dealership’s motion to compel arbitration and/or dismiss, Brookner
       questioned the validity of the arbitration agreement because the signature was not his and
       because the document was not signed by anyone from the dealership. Further, Brookner
       emphasized that the document had not been authenticated via affidavit and was therefore an
       improper basis for the dealership’s motion.
¶9          The dealership filed a reply in which it gave its account of the sale of an Escalade to
       Brookner. The dealership claimed that Brookner came in on October 3, 2015, and told
       salesperson Melinda McCorkle he wanted to buy a new Escalade. McCorkle showed him a
       2016 black Escalade, but it lacked the accessories Brookner wanted so he told her he was not
       interested. Brookner returned to the dealership on October 12, 2015, and told McCorkle that
       he wanted to buy “a grey Cadillac Escalade with Kona interior and power running boards, and
       that the vehicle’s year did not matter.” The dealership did not have such a vehicle, but on
       October 15, 2015, the dealership’s sales manager located a “dark granite metallic” 2015
       Escalade, so he left a voicemail for Brookner about it. On October 17, 2015, Brookner returned
       to the dealership, looked at the 2015 Escalade, and decided to purchase it. The sales manager
       prepared a manager’s sheet including the information for the 2015 Escalade. While preparing
       the documents necessary for the sale, the dealership’s finance manager inadvertently inserted
       information for the 2016 Escalade McCorkle originally showed Brookner. Brookner signed
       the documents, including the arbitration agreement. On the same day, the dealership’s finance
       director realized that some of the documents referred to the incorrect vehicle. He called
       Brookner, explained the situation, and requested that Brookner come in to re-sign some
       documents. Two days later, Brookner returned to the dealership and signed several revised
       documents, which were subsequently bundled with some of the original documents. Affidavits
       from McCorkle, the finance manager, the sales manager, and the finance director were attached
       to the reply.
¶ 10        The dealership’s reply also alleged that Brookner knew he had purchased a 2015 Escalade,
       evidenced in part by the fact that he obtained insurance for a 2015 Escalade and that he never
       told the dealership he was given the wrong vehicle until he filed his civil complaint. The reply
       also alleged that Brookner brought the 2015 Escalade into the dealership for service several
       times over a 13-month period.
¶ 11        On August 22, 2017, the trial court heard arguments on the dealership’s motion to compel
       arbitration. The court granted the dealership’s motion after finding that “[w]hether the Plaintiff
       signed purchase documents for a 2015 or a 2016 Escalade, he a [sic] signed a document
       compelling arbitration in the event of a dispute.” The court ordered all further proceedings
       stayed pending the outcome of arbitration. The court also denied the motion for an evidentiary
       hearing as to whether the arbitration agreement was forged.
¶ 12        Brookner appeals.



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¶ 13                                             ANALYSIS
¶ 14       On appeal, Brookner argues that the trial court erred when it granted the dealership’s
       motion to compel arbitration. Specifically, he contends that the court should have held an
       evidentiary hearing on whether the arbitration agreement was forged. The bottom line with
       regard to the underlying dispute is that Brookner claims he purchased a 2016 vehicle but
       received a 2015 vehicle. The dealership claims Brookner knew he was purchasing and did
       purchase a 2015 vehicle.
¶ 15       Initially, we note that this is an appeal from an interlocutory order; nonetheless, this court
       has jurisdiction pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. July 1, 2017) because
       motions to compel arbitration are analogous to motions seeking injunctive relief. Nagle v.
       Nadelhoffer, Nagle, Kuhn, Mitchell, Moss & Saloga, P.C., 244 Ill. App. 3d 920, 924 (1993).
       “The only question before us on an interlocutory appeal of this type is whether there was a
       sufficient showing to sustain the order of the trial court granting or denying the relief sought.”
       Bass v. SMG, Inc., 328 Ill. App. 3d 492, 496 (2002).
¶ 16       Contrary to Brookner’s claim, de novo is not the appropriate standard of review. When
       factual findings are made, the decision of whether to compel arbitration is not made as a matter
       of law. See Amalgamated Transit Union, Local 900 v. Suburban Bus Division of the Regional
       Transportation Authority, 262 Ill. App. 3d 334, 337 (1994) (holding de novo was the
       appropriate standard of review of a trial court’s decision on a motion to compel arbitration that
       involved only the legal issue of whether the dispute was arbitrable). Here, the trial court made
       factual findings that Brookner signed the arbitration agreement and that it was in fact valid.
       Accordingly, we review the court’s decision in this case for an abuse of discretion. See Federal
       Signal Corp. v. SLC Technologies, Inc., 318 Ill. App. 3d 1101, 1105 (2001).
¶ 17       “At a hearing to compel arbitration, the only issue for the trial court is whether an
       agreement exists to arbitrate the dispute in question.” Nagle, 244 Ill. App. 3d at 925 (citing
       Nelson v. Roger J. Lange & Co., 229 Ill. App. 3d 909, 911 (1992)). Whether a contract to
       arbitrate exists must be determined by the trial court, not an arbitrator. Menard County Housing
       Authority v. Johnco Construction, Inc., 341 Ill. App. 3d 460, 463 (2003). “ ‘[I]f the opposing
       party denies the existence of the agreement to arbitrate, the court shall proceed summarily to
       the determination of the issue so raised ***.’ ” Id. (quoting 710 ILCS 5/2(a) (West 2000)).
       “[T]he [Uniform Arbitration] Act contemplates a substantive disposition of the issues
       presented to the court.” Cohen v. Blockbuster Entertainment, Inc., 338 Ill. App. 3d 171, 177
       (2003). “Where a trial court has failed to articulate any specific reasons for ruling on the motion
       to compel arbitration, the court has not issued a substantive disposition.” Sturgill v. Santander
       Consumer USA, Inc., 2016 IL App (5th) 140380, ¶ 27 (citing Onni v. Apartment Investment &
       Management Co., 344 Ill. App. 3d 1099, 1104 (2003), and Comdisco, Inc. v. Dun & Bradstreet
       Corp., 285 Ill. App. 3d 796, 801 (1996)).
¶ 18       In this case, Brookner denied the existence of a valid arbitration agreement. The trial court
       found at the hearing on the motion to compel arbitration that,
               “[w]hether the Plaintiff signed purchase documents for a 2015 or a 2016 Escalade, he
               a [sic] signed a document compelling arbitration in the event of a dispute. So[,] I am
               going to grant the order compelling the Plaintiff to submit all claims to binding
               arbitration pursuant to the documents, ***.”
       The trial court made clear in its ruling and order that it found Brookner had signed an
       agreement to arbitrate any disputes resulting from his purchase of the vehicle. Inherent in the

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       court’s finding of a valid arbitration agreement was a finding that it was not the product of
       forgery. “Whether under federal rules or state law, there can be no forced arbitration without a
       valid contract to arbitrate.” Midland Funding, LLC v. Raney, 2018 IL App (5th) 160479, ¶ 19
       (citing Tortoriello v. Gerald Nissan of North Aurora, Inc., 379 Ill. App. 3d 214, 226 (2008);
       Vassilkovska v. Woodfield Nissan, Inc., 358 Ill. App. 3d 20, 25 (2005); Ervin v. Nokia, Inc.,
       349 Ill. App. 3d 508, 510 (2004); Aste v. Metropolitan Life Insurance Co., 312 Ill. App. 3d
       972, 975 (2000)); see also Neal v. LaRiva, 765 F.3d 788, 790 (7th Cir. 2014) (a forged contract
       to arbitrate is not judicially enforceable).
¶ 19        Brookner’s contention that the trial court erred in not holding an evidentiary hearing is
       unwarranted. Section 2(a) does not require a formal evidentiary hearing. See Comdisco, Inc.,
       285 Ill. App. 3d at 801; see also Moses H. Cone Memorial Hospital v. Mercury Construction
       Corp., 460 U.S. 1, 22 (1983) (interpreting similar language in the federal arbitration statute (9
       U.S.C. § 4 (1976)) to require “an expeditious and summary hearing, with only restricted
       inquiry into factual issues”); Howard v. Ferrellgas Partners, L.P., 748 F.3d 975, 978 (10th
       Cir. 2014) (holding that when material factual disputes exist regarding whether the parties
       agreed to arbitrate, the federal arbitration statute contemplates an expeditious resolution of
       those issues, rather than “death by discovery”). Further, section 2(a) of the Uniform Arbitration
       Act calls for only a summary determination of the issues at hand. 710 ILCS 5/2(a) (West 2014).
       In Comdisco, the reviewing court noted that a “summary proceeding” can be defined as,
               “ ‘a civil or criminal proceeding in the nature of a trial conducted without the
               formalities (as indictment, pleadings, and a jury) required by the common law,
               authorized by statute, and used for the speedy and peremptory disposition of some
               minor matter.’ ” Comdisco, Inc., 285 Ill. App. 3d at 801 (quoting Webster’s Third New
               International Dictionary 2289 (1986)).
       Accordingly, the hearing on the motion to compel arbitration was sufficient to meet the
       standard defined in Comdisco. Requiring an evidentiary hearing in this matter would be
       duplicative and a waste of judicial resources. The evidence presented at any hearing on remand
       concerning the issue of forgery would be similar, if not identical, to that submitted to the trial
       court when it made the decision to compel arbitration. The trial court’s factual finding that
       Brookner signed the agreement was a substantive determination of whether the arbitration
       agreement was valid and whether it was forged. The court in its ruling and order articulated a
       specific reason for ruling on the motion to compel arbitration. Therefore, there is a sufficient
       showing to sustain the order of the trial court granting the motion to compel arbitration.
¶ 20        We hold that the trial court did not abuse its discretion in granting the motion to compel
       arbitration.

¶ 21                                       CONCLUSION
¶ 22      For the foregoing reasons, we affirm the judgment of the circuit court of Will County.

¶ 23      Affirmed.

¶ 24        JUSTICE McDADE, dissenting:
¶ 25        I respectfully disagree with the majority’s conclusion that the circuit court did not abuse
       its discretion when it granted the motion to compel arbitration.


                                                   -5-
¶ 26       I would find that the hearing on the motion was insufficient to address Brookner’s
       argument that the arbitration agreement was invalid. The circuit court did not receive evidence
       on, or even inquire into, whether the agreement was valid. Rather, the court simply found that
       Brookner had in fact signed an arbitration agreement. While the court was concerned that
       addressing the forgery issue was “the subject matter of the trial,” the statute required the court
       to consider this issue before it could order arbitration. See 710 ILCS 5/2(a) (West 2014);
       Cohen, 338 Ill. App. 3d at 177 (holding that “where a party denies the existence of the
       arbitration agreement, the [Uniform Arbitration] Act contemplates a substantive disposition of
       the issues presented to the court”). Because that issue was not considered, we cannot say that
       there was a sufficient showing to sustain the court’s order. See Bass, 328 Ill. App. 3d at 496;
       Cohen, 338 Ill. App. 3d at 178.
¶ 27       I acknowledge that section 2(a) of the Uniform Arbitration Act calls for only a summary
       determination of the issue at hand (710 ILCS 5/2(a) (West 2014)) and that the First District has
       offered a definition of summary proceedings (Comdisco, 285 Ill. App. 3d at 801). However,
       even though section 2(a) may not contemplate a formal evidentiary hearing, I believe the circuit
       court should have received evidence and made a substantive determination on the issue of
       whether the arbitration agreement was forged before it decided to order arbitration. See id.; see
       also Moses H. Cone Memorial Hospital, 460 U.S. at 22; Howard, 748 F.3d at 978.




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