                                                      SIXTH DIVISION
                                                   September 7, 2007


No. 1-06-3274



GLAZER'S DISTRIBUTORS OF ILLINOIS, )       Appeal from the Circuit
INC., an Illinois Corporation,     )       Court of Cook County.
                                   )
     Plaintiff-Appellant,          )
                                   )
     v.                            )       No. 06 CH 10744
                                   )
NWS-ILLINOIS, LLC, an Illinois     )
Limited Liability Company, and     )
NATIONAL WINE AND SPIRITS, INC., )
an Indiana Corporation,            )       Honorable
                                   )       Mary Anne Mason,
     Defendants-Appellees.         )       Judge Presiding.



     JUSTICE O'MALLEY delivered the opinion of the court:

     The issues presented in this interlocutory appeal involve

plaintiff Glazer's Distributors of Illinois, Inc.'s (Glazer's)

unsuccessful attempt to compel arbitration of its claims against

defendant NWS-Illinois, LLC (NWS LLC), a subsidiary of defendant

National Wine & Spirits, Inc., pertaining to NWS LLC's alleged

breaches of two contracts.1     In denying Glazer's request to

compel arbitration, among other things, the circuit court

determined that Glazer's claims were based on a contract that did


     1
         For purposes of clarity, we will collectively refer to the

defendants NWS-Illinois, LLC, and National Wine & Spirits, Inc.,

as "NWS LLC."     However, as necessary and relevant, we will

identify the parties individually.
1-06-3274

not contain an arbitration provision, the parties did not agree

to arbitrate the claims at issue, and Glazer's waived its right

to arbitrate.

     On appeal, Glazer's challenges the circuit court's order

that (1) denied Glazer's motion to compel arbitration; (2)

granted NWS LLC's motion to stay arbitration; (3) granted NWS

LLC's motion to dismiss Glazer's amended motion that sought, in

pertinent part, a claim for arbitration.     Glazer's also seeks our

review of the circuit court's refusal to allow Glazer's to obtain

arbitration-related discovery and presentation of witnesses.2

     For the reasons that follow, we affirm the judgment of the

circuit court.

                              BACKGROUND

     In 2002, Glazer's, an Illinois corporation, sought to become

a participant in the Illinois wholesale distribution market for

alcoholic and nonalcoholic beverages.      At that time, NWS LLC, an

Illinois limited liability company, operated a wholesale


     2
         As represented by Glazer's, these decisions occurred on the

record on August 1, 2006, and September 5, 2006, respectively.

NWS LLC filed in this court a motion to dismiss Glazer's

challenges to those decisions based on lack of appellate

jurisdiction.     On February 5, 2007, this court denied NWS LLC's

motion.

                                   2
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distribution business for wine, spirits, and other beverages in

Illinois.

     In February 2003, as a result of negotiations among those

parties, Glazer's and NWS LLC entered into a management services

agreement that created an agreement whereby Glazer's would

provide assistance, management, and consultation services for NWS

LLC's wholesale distribution business in Illinois.   Under that

agreement, in pertinent part, Glazer's received 50% of the

profits and shared 50% of the costs associated with that business

arrangement.

                A.   Contracts at Issue on Appeal

     Subsequently, on December 1, 2003, Glazer's and NWS LLC

contemporaneously entered into two contracts, namely, a 20-page

management services agreement (MSA) and a 43-page conditional

sales agreement (CSA).   Both of these contracts are at issue on

appeal.

                              1.   The MSA

     The MSA was entered into by NWS LLC and Glazer's.   The MSA

identified NWS LLC as an indirect subsidiary of National Wine &

Spirits, Inc. (an Indiana corporation), and identified Glazer's

as a wholly owned subsidiary of Glazer's Wholesale Drug Company,

Inc. (a Texas corporation).    The parent corporations guaranteed

performance of their respective subsidiaries.   James LaCrosse


                                    3
1-06-3274

signed the MSA on behalf of NWS LLC and National Wine & Spirits,

Inc., and Bennett Glazer signed the MSA on behalf of Glazer's and

Glazer Wholesale Drug Company, Inc.

     Under the MSA, Glazer's received 80% of the profits and

shared 80% of the costs of the contracted business arrangement

with NWS LLC.   Glazer's agreed to provide NWS LLC with general

management and consulting services with respect to marketing

alcoholic beverages, provide assistance and guidance in obtaining

additional lines and brands of products, and maintain existing

and establish new relationships with NWS LLC's suppliers.

     The MSA established a six-member steering committee that

would coordinate the business arrangement between NWS LLC and

Glazer's in order to maximize the growth opportunities and

profitability of that arrangement, and identified a number of

duties and responsibilities of the steering committee.

     NWS LLC retained all powers and authorities with respect to

the operation, management and administration of the business that

were not expressly granted to the steering committee.    In

addition, among other things, NWS LLC expressly retained "the

sole and exclusive right, power and authority *** to enter into,

modify, terminate, or otherwise extend any distribution

contracts" under paragraph 12(a) of the MSA.

     The MSA further provided that NWS LLC and Glazer's intended


                                 4
1-06-3274

to contemporaneously enter into a conditional sales agreement

(CSA, detailed infra), which would allow for the organization of

a new Illinois limited liability company, referred to as Newco,

that would be jointly owned by NWS LLC and Glazer's.

     In relevant part, the MSA also contained a "Buy/Sell"

provision in paragraph 16, which allowed either NWS LLC or

Glazer's to make an offer to buy the entire interest of the other

party.   Specifically, if Glazer's sought to purchase the interest

of NWS LLC, then the parties would form Newco in compliance with

the CSA, and Glazer's would pay NWS LLC a specified amount to be

calculated from various factors.

     The MSA chose Illinois law as its governing law and fixed

the venue in Cook County, Illinois.    The MSA permitted attorney

fees for a prevailing party if "any legal action or any

arbitration or other proceeding is brought for enforcement" of

the MSA.    However, the MSA neither provided for nor discussed an

express arbitration provision.

                             2.   The CSA

     Contemporaneously with the signing of the MSA on December 1,

2003, Glazer's and NWS LLC entered into the aforementioned CSA.

LaCrosse signed the CSA on behalf of NWS LLC, and Glazer signed

the CSA on behalf of Glazer's.

     The CSA outlined Glazer's option to acquire an interest in


                                   5
1-06-3274

certain assets of NWS LLC through the formation of a new entity

to be called Newco.    Under the CSA, upon Glazer's exercise of its

option, NWS LLC would transfer certain of its assets to Newco on

a specified "closing date."    These assets included, in pertinent

part, "all supplier, distributor, and wholesaler appointment

agreements *** with which NWS LLC is doing business on the

Closing Date, if assignable and transferable to [Newco] (the

'Supplier Contracts')." Ultimately, Glazer's would own an 80%

interest in Newco, and NWS LLC would own a 20% interest in Newco.

The CSA required NWS LLC to use its commercially reasonable best

efforts to obtain the consent of its suppliers to the transfer of

their contracts to Newco.

     The CSA chose Illinois law as its governing law and provided

that the parties agreed to settle any legal proceedings in

Illinois courts, except as otherwise provided in the arbitration

provision contained in section 9.5.

     Section 9.5 of the CSA, titled "Dispute Resolution,"

contained the following arbitration provision:

                 "Except as otherwise provided in this

            Agreement or the MSA, any controversy or

            claim arising out of or relating to this

            Agreement, or the breach thereof, including

            the scope and applicability of this Agreement


                                  6
1-06-3274

            to arbitrate, shall be settled by

            arbitration.

                                   ***

                 Notwithstanding anything to the contrary

            contained in this Section 9.5, but without

            limiting the power of arbitrators to grant

            similar remedies that may be requested by a

            party in dispute, any party shall have the

            right to proceed in any court of proper

            jurisdiction to obtain injunctive or other

            relief, enforce a judgment rendered by an

            arbitrator, or obtain any other similar or

            ancillary remedies."

The CSA's arbitration provision provided that arbitration

proceedings would be administered by the American Arbitration

Assocation (AAA) in accordance with its rules.    The CSA's

arbitration provision further provided that the arbitration

hearings would be conducted either in Indianapolis, Indiana, if

Glazer initiated them, or Dallas, Texas, if NWS LLC initiated

them.

                   B.   Glazer's Original Complaint

     On May 30, 2006, Glazer's filed in the circuit court a

complaint seeking injunctive relief, declaratory judgment, and,


                                    7
1-06-3274

in the alternative, a claim for breach of contract.      Also on May

30, 2006, Glazer's filed a verified motion for temporary

restraining order.

     In their complaint, Glazer's alleged that on May 18, 2006,

NWS LLC informed Glazer's that NWS LLC had entered or intended to

enter into agreements to sell a number of NWS LLC's distribution

contracts in Illinois.   The next day, on May 19, 2006, Glazer's

responded and informed NWS LLC that its sale of any distribution

contracts would be a breach of both the MSA and the CSA.

Glazer's demanded NWS LLC to rescind or terminate any such

agreements to sell its distribution contracts.      Glazer's further

notified NWS LLC that Glazer's was exercising its right to

purchase the assets of NWS LLC pursuant to the CSA.

     Glazer's requested the court to enter a temporary

restraining order enjoining NWS LLC's "threatened sale" of its

Illinois distribution contracts.       Glazer's further requested the

court to enter an order that preliminarily and permanently

enjoined NWS LLC from selling its distribution contracts, and

declared that the MSA and CSA prohibited NWS LLC from selling

such contracts.   In the alternative, Glazer's requested the court

to award Glazer's all damages resulting from NWS LLC's breach of

the MSA and the CSA.

     On June 2, 2006, in a written order, the circuit court


                                   8
1-06-3274

denied Glazer's motion for a temporary restraining order.    In

relevant part, the circuit court found that the agreements

between Glazer's and NWS LLC did not prohibit NWS LLC from

selling its distribution contracts.

     On June 8, 2006, this court denied Glazer's petition for

temporary restraining order and a motion for stay of sale pending

our ruling on that petition.

     On June 29, 2006, NWS LLC filed a motion to dismiss Glazer's

May 2006 complaint, arguing, in pertinent part, that neither the

MSA nor the CSA prohibited NWS LLC from selling its distribution

contracts.

                   C.   Glazer's Seeks Arbitration

     The next day, June 30, 2006, Glazer's filed an arbitration

demand with the American Arbitration Association (AAA), raising

10 separate counts, including claims for breach of contract under

the MSA and CSA.   Glazer's named as respondents NWS LLC,

LaCrosse, National Wine & Spirits Inc., and National Wine &

Spirits Corp.

     Specifically, Glazer's alleged that in May 2006, NWS LLC had

negotiated with the Anheuser-Busch distribution network to sell

NWS LLC's distribution rights for the Grolsch and Goose Island

beer brands for $9.1 million.    Glazer's contended that this sale

occurred "despite Glazer's objections and despite the fact that


                                  9
1-06-3274

the agreement between NWS [LLC] and Glazer's required that those

assets be maintained for the benefit of the joint venture."

     On July 6, 2006, NWS LLC and National Wine & Spirits, Inc.,

joined by LaCrosse and National Wine & Spirits Corp., filed in

the circuit court a motion to stay arbitration.3     In that motion

to stay, the parties argued, among other things, that Glazer's

had waived any right it had to arbitration the issue and that its

filing of an arbitration demand was an impermissible attempt at

forum shopping.

     On July 18, 2006, the circuit court entered an order that

stayed the arbitration and granted Glazer's leave to amend its

complaint.     The court further ordered Glazer's to "notify [the]

AAA that the pending arbitration will not proceed until the court

has ruled on the sufficiency of the amended complaint, and will

not waive the parties AAA deadlines pending this resolution."

     On August 3, 2006, Glazer's filed two pleadings in the

circuit court:     (1) a first amended complaint (amended

complaint); and (2) a motion to compel arbitration and stay

proceedings and response to NWS LLC's motion to stay arbitration.

     In its amended complaint, Glazer's brought a claim for


     3
         The circuit court denied Glazer's motion to strike the

motion to stay as is pertained to LaCrosse and National Wine &

Spirits Corp, finding that both parties were properly before it.

                                  10
1-06-3274

arbitration, and, alternatively, claims for preliminary

injunction, and constructive trust.   Glazer's alleged that NWS

LLC sold its Illinois distribution rights for the Goose Island

and Grolsch brands to Anheuser-Busch for $9,1 million on June 5,

2006.   Glazer's further alleged that NWS LLC intended to sell

additional beer distributor contracts.   According to Glazer's, in

July 2006 the buy/sell provision of the MSA had been "triggered"

by actions of Glazer's and NWS LLC, which prevented NWS LLC from

subsequently selling its distribution contracts.

     In regard to its claim for arbitration, Glazer's asserted

that "[t]his dispute arises out of and relates to the CSA and

MSA, which were executed at the same time and are intertwined,

and is subject to the arbitration provisions contained therein."

Consequently, according to Glazer's, NWS LLC was obligated to

submit to arbitration to resolve the dispute regarding NWS LLC's

sale of its distribution contracts "because a binding agreement

exists between Glazer's and [NWS LLC] providing for the mandatory

settlement of disputes through arbitration."

     On August 18, 2006 NWS LLC filed a motion to dismiss

Glazer's amended complaint.

     On October 4, 2006, Glazer's filed in the circuit court an

emergency motion for a temporary restraining order to enjoin NWS

LLC from selling additional distribution contracts.   Glazer's


                                11
1-06-3274

explained that between July 2006 and August 2006, it had

exercised its right to purchase NWS LLC's entire interest

pursuant to the buy/sell provision of the MSA, which resulted in

NWS LLC being barred from subsequently selling its distribution

contracts.

     On October 6, 2006, the circuit court granted Glazer's

emergency motion for a temporary restraining order and enjoined

NWS LLC from selling any of the identified distribution contracts

until the hearing on Glazer's amended motion to compel

arbitration.

     Following a hearing on October 23, 2006, where both parties

presented extensive arguments, the circuit court entered a

written order.   In relevant part, the court (1) found that the

issues were governed by the Illinois Uniform Arbitration Act (710

ILCS 5/1 et seq. (West 2006)); (2) denied Glazer's motion to

compel arbitration and stay proceedings; (2) granted NWS LLC's

motion to stay arbitration; and (3) granted NWS LLC's motion to

dismiss Glazer's amended complaint, including Glazer's claim for

arbitration.

     Specifically, in denying Glazer's motion to compel

arbitration, the court found that Glazer's claims were all based

on the MSA, which did not contain an arbitration provision, and

Glazer's had waived its right to arbitrate by filing its first


                                12
1-06-3274

complaint, which did not seek arbitration.     In granting NWS LLC's

motion to dismiss the amended complaint, the court found that

dismissal of count I of the amended complaint seeking arbitration

was warranted based on the court's ruling to deny Glazer's motion

to compel arbitration.     In addition, the court further concluded

that LaCrosse and National Wine & Spirits Corp. were not

signatories or parties to the agreements and that National Wine &

Spirits, Inc., was not a signatory to the CSA.

     On November 20, 2006, Glazer's filed an interlocutory appeal

seeking review of the circuit court's October 23, 2006, order.

                               ANALYSIS

     On appeal, Glazer's argues that the circuit court erred when

it denied Glazer's motion to compel arbitration, granted NWS

LLC's motion to stay arbitration, and granted NWS LLC's motion to

dismiss Glazer's claim seeking arbitration in Glazer's amended

complaint (count I).4     Glazer's also seeks our review of the

circuit court's refusal to allow Glazer's to obtain arbitration-

related discovery on August 1, 2006, or to present witnesses in

support of its arbitration rights on September 5, 2006.

     Glazer's requests that this court (1) reverse and vacate the


     4
         Regarding the dismissal of its amended complaint, in its

notice of appeal, Glazer's appeals only the court's dismissal of

count I, which is the claim for arbitration.

                                  13
1-06-3274

circuit court's order; (2) direct NWS LLC, National Wine &

Spirits, Inc., National Wine & Spirits Corp., and LaCrosse to

proceed to arbitrate all claims; (3) alternatively, if this court

determines that further evidence is needed with respect to

whether LaCrosse and National Wine & Spirits Corp. are bound by

the arbitration provision, order those parties to be subject to

expedited arbitration-related discovery and stay the case pending

such discovery; and (4) stay the litigation pending a decision by

the AAA.

                          A.    Jurisdiction

     As a preliminary matter, we note that the parties raised

jurisdictional issues in their pleadings filed in this court

while this appeal was pending, which arise from NWS LLC's attempt

to dismiss certain of Glazer's claims on appeal based on lack of

appellate jurisdiction.5       The parties correctly agree that this

court, pursuant to Supreme Court Rule 307(a)(1) (188 Ill. 2d R.

307(a)(1)), has jurisdiction to review the circuit court's order

denying Glazer's motion to compel arbitration and granting NWS

LLC's motion to stay arbitration.        See, e.g., Weiss v. Waterhouse


     5
         Although, during the pendency of this appeal, this court

denied NWS LLC's motion challenging appellate jurisdiction over

certain of Glazer's claims, we nonetheless choose to revisit

these jurisdictional issues in our opinion.

                                    14
1-06-3274

Securities, Inc., 208 Ill. 2d 439, 448 (2004) (denial of motion

to compel arbitration appealable under Supreme Court Rule

307(a)(1)).

     However, NWS LLC argues that Supreme Court Rule 307(a)(1)

does not confer jurisdiction upon this court to review both (1)

the circuit court's dismissal of Glazer's claim seeking

arbitration (count I of Glazer's amended complaint) and (2) the

circuit court's refusal to allow Glazer's to obtain arbitration-

related discovery or to present witnesses in support of its

arbitration rights.

        1.    Court's Dismissal of Glazer's Claim Seeking

                Arbitration in the Amended Complaint

     First, we find that we have jurisdiction to review the

circuit court's dismissal of Glazer's claim seeking arbitration

in Glazer's amended complaint (count I).

     As our supreme court has recognized, when determining

whether a circuit court's order or ruling is an appealable

injunctive order under Supreme Court Rule 307(a)(1), "'we look to

the substance of the action, not its form. *** Actions of the

circuit court having the force and effect of injunctions are

still appealable even if called something else.'"      People v.

Phillip Morris Inc., 198 Ill. 2d 87, 101 (2001), quoting In re A

Minor, 127 Ill. 2d 247, 260 (1989).   Here, the circuit court's


                                 15
1-06-3274

dismissal of Glazer's claim seeking arbitration is essentially

the same action as the court's denial of Glazer's motion to

compel arbitration, which NWS LLC concedes is properly appealable

under Rule 307(a)(1).    Accordingly, we find that we have

jurisdiction under Supreme Court 307(a)(1) to review the circuit

court's dismissal of Glazer's claim seeking arbitration where it

also denied Glazer's motion to compel arbitration.

  2.     Court's Refusal to Allow Glazer's to Obtain Arbitration-

               Related Discovery or Present Witnesses

       Second, we find that we have jurisdiction to review the

circuit court's refusal to allow Glazer's to obtain arbitration-

related discovery or to present witnesses in support of its

arbitration rights.

       We agree with Glazer's position that Rule 307(a)(1) provides

this court with jurisdiction to consider those actions by the

circuit court because Rule 307 allows this court to review any

prior error that bears directly upon the question of whether an

order on appeal was proper.    See In re Marriage of Ignatius, 338

Ill. App. 3d 652 (2003); Sarah Bush Lincoln Health Center v.

Berlin, 268 Ill. App. 3d 184 (1994).    Here, it is logical to

conclude that the circuit court's refusal to allow Glazer's to

obtain arbitration-related discovery or to present witnesses in

support of its arbitration rights impacts the propriety of the


                                 16
1-06-3274

court's determination that Glazer's was not entitled to

arbitration and denial of Glazer's motion to compel arbitration.

Similarly, the circuit court's decision regarding arbitration-

related discovery and witness testimony pertaining to

arbitrability of claims is also    "intertwined" with the court's

denial of Glazer's motion to compel arbitration.    See Weiss, 208

Ill. 2d at 448 (discussing the "intertwined" nature of pleadings

in the context of jurisdiction under Supreme Court Rule

307(a)(1)).

     In regard to NWS LLC's positions arguing against appellate

jurisdiction on these particular issues, we observe that the

majority of NWS LLC's arguments involve an analysis of the

underlying merits of Glazer's claims, including potential waiver

based on a purportedly inadequate record and insufficient legal

basis to support those claims.    However, when we address the

threshold issue of our jurisdiction to consider certain claims

brought on appeal, we are not concerned with the underlying

merits of those claims.

                  B.   Federal Law or State Law

     Having found that we have jurisdiction to consider Glazer's

claims, we now turn to the parties' disagreement over whether the

Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq. (2000) or the

Illinois Uniform Arbitration Act (Act) (710 ILCS 5/1 et seq.


                                  17
1-06-3274

(West 2006)) applies to the issues presented in this case.

     Glazer's argues that the FAA and corresponding federal law

apply because the arbitration provision in the CSA involves

interstate commerce where the CSA requires NWS LLC to sell,

transfer, and assign certain assets to Glazer's out-of-state

corporate parent, Glazer Wholesale Drug Company, Inc.   Glazer's

further argues that interstate commerce is implicated because two

out-of-state corporate parent companies are guarantors to the MSA

and receive payments under that agreement, and the buy/sell

provision of the MSA "contemplates the transfer of assets to a

subsidiary [Glazer's] of an out-of-state company based in Dallas,

Texas - Glazer Wholesale Drug Company, Inc."

     NWS LLC replies that the Act applies, as the circuit court

similarly determined, because both the MSA and CSA contain choice

of law provisions selecting Illinois law to govern the contracts.

     In circumstances where parties to a contract have agreed to

arbitrate in accordance with state law, the FAA does not apply,

even where interstate commerce is involved.    Yates v. Doctor's

Associates, Inc., 193 Ill. App. 3d 431, 438 (1990), citing Volt

Information Sciences, Inc. v. Board of Trustees of Leland

Stanford Junior University, 489 U.S. 468, 103 L. Ed. 2d 488, 109

S. Ct. 1248 (1989).   Notably, the United States Supreme Court in

Volt concluded that application of a state arbitration law was


                                18
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not preempted by the FAA where the contracting parties had agreed

that the contract at issue, including the arbitration provision,

would be governed by state law.    Volt, 489 U.S. at 470-71, 103 L.

Ed. 2d at 494-95, 109 S. Ct. at 1251.

     Most significantly, in Yates, as in this case, the parties

included a choice-of-law provision selecting state law as the

governing law of the contracts, and there was nothing in the

record to suggest that the parties did not intend for the choice-

of-law provision to apply to the arbitration provision.    Yates,

193 Ill. App. 3d at 438.   Consequently, in accordance with Volt

and Yates, we find that the Act, rather than the FAA, applies to

this case because the parties explicitly included a choice-of-law

provision selecting Illinois law as the governing law for both

the MSA and CSA, and there is nothing in those contracts to

support a conclusion that Illinois law was inapplicable to the

arbitration provision.   See also Bishop v. We Care Hair

Development Corp., 316 Ill. App. 3d 1182, 1190 (2000) (discussing

Yates and Volt and concluding that the choice of law clause at

issue reflected an agreement to arbitrate in accordance with

Illinois law).

     Glazer's citation to Mastrobuono v. Shearson Lehman Hutton,

Inc., 514 U.S. 52, 55, 131 L. Ed. 2d 76, 82-83, 115 S. Ct. 1212,

1215 (1995), does not alter our decision.   As explained by this


                                  19
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court in Bishop, the Mastrobuono court analyzed a contract that

ambiguously provided in its arbitration clause that claims for

punitive damages would be arbitrated, but contradicted itself in

its choice-of-law provision by selecting New York law, under

which punitive damages were prohibited in arbitration.    Bishop,

316 Ill. App. 3d at 1190 (discussing Mastrobuono).   Ultimately,

the Mastrobuono court construed the ambiguity against the

drafting party, relied on the FAA presumption that all doubts

regarding the scope of arbitration be resolved in favor of

arbitration, and concluded that the choice-of-law provision

covered the rights and duties of parties, while the arbitration

clause covered arbitration.   Bishop, 316 Ill. App. 3d at 1191,

citing Mastrobuono, 514 U.S. at 64, 131 L. Ed. 2d at 88, 115 S.

Ct. At 1219.

     Here, unlike Mastrobuono, there is no such ambiguity that

would require us to similarly construe the arbitration and

choice-of-law provisions contained in the MSA and CSA.    More

significantly, in Mastrobuono, the United States Supreme Court

relied on the FAA presumption liberally favoring arbitration

after recognizing that it was possible to interpret the

contract's choice-of-law provision in a manner that directly

conflicted with the arbitration provision regarding punitive

damages, which was an interpretation that the Court found


                                20
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"untenable."   Mastrobuono, 514 U.S. at 63-64, 131 L. Ed. 2d at

88, 115 S. Ct. at 1219.     In this case, we have no such reason to

rely upon the FAA presumption, especially where we have found

that the FAA is inapplicable.

                C.   Waiver of Right to Arbitration

     We next address Glazer's challenge to the circuit court's

determination that Glazer's waived its right to compel

arbitration.

                       1.   Standard of Review

     First, we must determine the appropriate standard of review

applicable to the circuit's court determination that Glazer's

waived its right to arbitration.       It is undisputed that this

interlocutory appeal was brought pursuant to Supreme Court Rule

307(a)(1), which allows such appeals from orders denying

injunctive relief, including a denial of a motion to compel

arbitration.   See Feldheim v. Sims, 326 Ill. App. 3d 302, 308-09

(2001).

     Glazer's maintains that a de novo standard applies because

the circuit court "made no attempt to look at the actions of the

parties by reviewing any disputed facts," did not make any

factual findings, did not allow Glazer's to obtain discovery or

present witnesses, and made its determination as a matter of law.

     NWS LLC maintains that because a motion to compel


                                  21
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arbitration is reviewable as an interlocutory appeal pursuant to

Supreme Court Rule 307(a)(1) (188 Ill. 2d R. 307(a)(1)), the

circuit court's decision in that regard is subject to an abuse of

discretion standard of review.   NWS LLC further maintains that an

abuse of discretion standard is appropriate because the

determination of waiver involves mixed questions of law and fact.

     Our research reveals that the relevant authority is split on

the issue of whether an abuse of discretion standard or de novo

standard applies to cases such as this one.   The Second, Third,

and Fifth Districts of this court have determined that a de novo

review is appropriate where the circuit court has determined the

issue of waiver of the right to arbitration because the circuit

court in such instances reviews undisputed facts and makes a

waiver determination as a matter of law.   See, e.g.,   Household

Finance Corp. III v. Buber, 351 Ill. App. 3d 550, 553 (2004);

LAS, Inc. v. Mini-Tankers, USA, Inc., 342 Ill. App. 3d 997, 1001

(2003); La Hood v. Central Illinois Construction, Inc., 335 Ill.

App. 3d 363, 364 (2002).

     In contrast, a number of decisions from the First District

of this court have determined that an abuse of discretion

standard applies to a review of the circuit court's decision

regarding waiver of arbitration rights.    See, e.g., Northeast

Illinois Regional Commuter R.R. Corp. v. Chicago Union State Co.,


                                 22
1-06-3274

358 Ill. App. 3d 985, 994-95 (2005) (NIRC Railroad); Feldheim,

326 Ill. App. 3d at 308-09; Schroeder Murchie Laya Associates,

Ltd. v. 1000 West Lofts, LLC, 319 Ill. App. 3d 1089, 1092-94

(2001) (Schroeder); Bishop, 316 Ill. App. 3d at 1189.

     In Schroeder, the court recognized that the circuit court

did not conduct an evidentiary hearing, but explained that "the

[circuit] court must necessarily engage in a factual inquiry to

determine if a party's actions constitute waiver."     Schroeder,

319 Ill. App. 3d at 1093.    In addition, the court noted that

established precedent provided that appeals brought pursuant to

Rule 307(a)(1) are typically reviewed only for an abuse of

discretion.    Schroeder, 319 Ill. App. 3d at 1093.   Ultimately,

the Schroeder court adopted an abuse of discretion standard and

declined a de novo standard.    Schroeder, 319 Ill. App. 3d at

1094.    See also NIRC Railroad, 358 Ill. App. 3d at 993-95

(discussing and agreeing with Schroeder); Feldheim, 326 Ill. App.

3d at 308-09 (citing Schroeder with approval).

     After having carefully reviewed the aforementioned

decisions, we agree with Schroeder and the similarly decided

cases.    In accordance with that authority, we will review the

circuit court's decision that Glazer's waived its right to

arbitration under an abuse of discretion standard.    Under that

standard, we must determine whether there is a sufficient showing


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in the record to sustain the circuit court's decision.       NIRC

Railroad, 358 Ill. App. 3d at 995;      Schroeder, 319 Ill. App. 3d

at 1094.

           2.   Authority to Make Waiver Determination

     Second, we consider Glazer's contention that the circuit

court did not have the authority to decide the issue of waiver,

but instead should have reserved that decision for an arbitration

panel.

     Most significantly, this court has already explicitly

rejected an identical challenge.       NIRC Railroad, 358 Ill. App. 3d

at 999.    Furthermore, in Schroeder, this court determined that a

circuit court had the discretion to decide the issue of waiver of

arbitration where the party opposing arbitration claimed that the

other party had waived its rights to arbitration.        Schroeder, 319

Ill. App. 3d at 1095.    Here, as in Schroeder, NWS LLC

consistently argued in its motion to stay arbitration and in the

related underlying proceedings that Glazer's had waived its right

to arbitrate.    Therefore, in accordance with NIRC Railroad and

Schroeder, we find that the circuit court here had the discretion

to decide the issue of Glazer's purported waiver of its right to

arbitration.

     Glazer's reliance on the United States Supreme Court's

decision in Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79,


                                  24
1-06-3274

154 L. Ed. 2d 491, 123 S. Ct. 588 (2002), does not alter our

conclusion.     Notably, Howsam did not hold that issues of waiver

must be decided by an arbitrator, but rather concluded that such

issues were presumptively reserved for an arbitrator.       Howsam,

537 U.S. at 84, 154 L. Ed. 2d at 498, 123 S. Ct. at 592.

Moreover, as Glazer's recognizes in its reply brief, courts

interpreting Howsam have reached different conclusions regarding

the issue of whether waiver should be decided by the court or an

arbitrator.6 Thus, we reject Glazer's position on this issue and

reaffirm our reliance on NIRC Railroad and Schroeder.

    3.     Finding that Glazer's Waived its Right to Arbitrate

     Having determined that the circuit court had the authority

to address the issue of whether Glazer's waived its right to

arbitrate and that we will review its decision under an abuse of

discretion standard, we now consider Glazer's challenge to the

circuit court's finding that Glazer's waived its right to

arbitrate by filing its first complaint in the circuit court.

     Specifically, Glazer's argues that (1) the trial court

impermissibly failed to make any findings of fact with respect to


     6
         In its reply brief, Glazer's states that "courts

interpreting Howsam 'have split on the issue of whether waiver

should be determined by the court or the arbitrator.'

[Citations.]"

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1-06-3274

waiver; (2) its "limited conduct" in filing preliminary

injunction motions and an initial complaint in support of such

relief does not waive its right to arbitrate and did not

prejudice NWS LLC; and (3) Glazer's actions were consistent both

with AAA rules permitting injunctive relief and FAA rules

permitting temporary injunctive relief.

     In Illinois, courts favor resolution of disputes through the

use of arbitration, and although a contractual right to arbitrate

can be waived like any other contractual right, Illinois courts

disfavor a finding that a party has waived its right to

arbitrate.   Schroeder, 319 Ill. App. 3d at 1095-96.   Thus, waiver

of a contractual right to arbitration "is not to be lightly

inferred."   Atlas v. 7101 Partnership, 109 Ill. App. 3d 236, 240

(1982).

     Nevertheless, it is settled that a contractual right to

arbitrate can be waived where a party's conduct is found to be

inconsistent with the arbitration clause and therefore indicates

that the party has abandoned that right.    See, e.g., NIRC

Railroad, 358 Ill. App. 3d at 996; Feldheim, 326 Ill. App. 3d at

309; Schroeder, 319 Ill. App. 3d at 1096.    Accordingly, "in

determining whether a party has waived its contractual right to

arbitrate, the crucial inquiry is whether the party has acted

inconsistently with its right to arbitrate."    Schroeder, 319 Ill.


                                26
1-06-3274

App. 3d at 1098.

     Here, after extensively and carefully reviewing the record,

we find ample support to sustain the circuit court's judgment and

similarly conclude that Glazer's waived its right to arbitrate by

filing its original complaint in the circuit court.

     The central premise of our conclusion is that Glazer's,

which initiated the underlying litigation as a plaintiff, filed

its original complaint before the circuit court without making

any mention of arbitration and, in fact, sought complete relief

before the circuit court to resolve the underlying dispute

concerning NWS LLC's allegedly impermissible sale of its

distribution contracts.

     Specifically, Glazer's requested in its original complaint

the court to enter (1) an order "preliminarily and permanently

enjoining" NWS LLC from selling the disputed distribution

contracts; (2) a declaratory judgment that the MSA "is valid and

existing and prohibits [NWS LLC] from selling the [distribution]

contracts they own"; (3) alternatively to the declaratory

judgment, a judgment in favor of Glazer's and against NWS LLC

"for all damages resulting" NWS LLC's alleged breaches of the MSA

and CSA; and (4) attorney fees associated with the underlying

litigation.   Clearly, the relief sought in Glazer's original

complaint positively rebuts Glazer's rather disingenuous position


                                27
1-06-3274

on appeal that its original complaint amounted to "limited

conduct in filing preliminary injunction motions and an initial

complaint in support of such relief."

     We also note that Glazer's filed its arbitration demand only

after (1) the circuit court denied its request for a temporary

restraining order in connection with its original complaint; (2)

this court denied its claim for a temporary restraining order in

connection with its original complaint; and (3) NWS LLC filed a

motion to dismiss Glazer's original complaint.   These

circumstances suggest, as NWS LLC argued, that Glazer's was

engaging in impermissible forum shopping by filing a demand for

arbitration after unsuccessfully seeking relief before the

circuit court.   See Feldheim, 326 Ill. App. 3d at 313 (noting, in

the context of arbitration, that "the law does not permit [a

party] to forum shop until [it] receive[s] the desirable

decision").

     Ultimately, it is undeniable that Glazer's submitted

arbitrable issues in its original complaint before the circuit

court for resolution by that court, namely, whether the MSA and

CSA allowed NWS LLC to sell its distribution contracts.    As this

court has previously determined, "by submitting arbitrable issues

for judicial determination, [the party's] participation in the

legal forum was inconsistent with [its] contractual right [to


                                28
1-06-3274

arbitrate] and constituted an abandonment of that right."

Schroeder, 319 Ill. App. 3d at 1098.    Accordingly, we conclude

that Glazer's waived its right to arbitrate and the circuit court

did not abuse its discretion in reaching the same conclusion.

     We are not persuaded by Glazer's arguments against such a

conclusion.    First, contrary to Glazer's position regarding the

circuit court's alleged failure to make findings of fact or

explain its findings, the circuit court necessarily had to make

certain factual findings before concluding that Glazer's waived

its right to arbitrate.     See NIRC Railroad, 358 Ill. App. 3d at

996 (reaching same conclusion).    More significantly, the circuit

court made the following observation during the hearing:

                 "Glazer's came in here at the end of May

            filing a complaint asking this Court to

            resolve its issues with [NWS LLC].    That

            complaint was not limited in any matter.     It

            did not reference arbitration, even

            potentially."

This excerpt demonstrates that the circuit court considered the

factual background of this case and identifies the same factor

that we relied upon to find that Glazer's waived its right to

arbitrate.

     Second, contrary to Glazer's characterization of its


                                  29
1-06-3274

original complaint, that complaint did not simply amount to a

request for preliminary injunction and a complaint in support of

that request.   Instead, we reemphasize that Glazer's original

complaint sought final and complete relief from the circuit court

regarding the ability of NWS LLC to sell its distribution

contracts.   We disagree with Glazer's assertion that NWS LLC was

not prejudiced by the "limited" litigation and short period of

time involved in this dispute.   To the contrary, NWS LLC was

inherently prejudiced by being brought into the litigation,

forced to defend against Glazer's claim that NWS LLC was

prohibited from selling its distribution contracts, and, upon

successfully defending against that litigation, being subjected

to a potential arbitration proceeding over an identical dispute

involving the distribution contracts.

     Third, in regard to Glazer's claim that AAA and FAA rules

allow parties to seek temporary injunctive relief in order to

preserve the status quo pending arbitration, we again point out

that Glazer's did not seek only temporary injunctive relief in

its original complaint, nor did Glazer's request injunctive

relief in its complaint for the purpose of preserving the status

quo until arbitration.

     Further, although Glazer's asserts that Illinois law

requires a party to allege an underlying substantive action to


                                 30
1-06-3274

assert a motion for temporary restraining order or preliminary

injunction, Glazer's original complaint was not framed in that

context.    Instead, Glazer's sought in its original complaint

temporary and permanent injunctive relief, a declaratory

judgment, and damages for breach of contract.    In other words,

Glazer's original complaint did not even mention arbitration,

which directly contradicts its position on appeal that its

original complaint requested injunctive relief as a means to

preserve the controversy for subsequent arbitration.

     We disagree with Glazer's contention that Atlas is

dispositive of the waiver issue in this case because of the

particular distinguishing circumstances present in that case.      In

stark contrast to this case, after the plaintiff initiated the

litigation by filing complaints for injunctive relief, one of the

defendants sought to compel arbitration and then the plaintiff

sought to compel arbitration.    Atlas, 109 Ill. App. 3d at 239.

The circuit court in Atlas granted both the plaintiff's and

defendant's motions to compel arbitration.    Atlas, 109 Ill. App.

3d at 239.    Thus, based on these facts we do not find Atlas to be

dispositive of this case.

     Finally, to the extent that Glazer's relies upon federal

authority regarding arbitration issues, such authority is not

particularly persuasive or relevant to this case where we have


                                 31
1-06-3274

determined that Illinois law governs the dispute because both NWS

LLC and Glazer's expressly agreed to an Illinois choice-of-law

provision in the MSA and CSA, and we have found applicable

Illinois authority.   See Allstate Insurance Co. v. Lane, 345 Ill.

App. 3d 547, 552 (2003) ("Only in the absence of Illinois

authority on the point of law in question are we to look to other

jurisdictions for persuasive authority").

     Because we have determined that the record supports the

circuit court's judgment denying Glazer's motion to compel

arbitration because Glazer's has waived its right to arbitrate,

we affirm the circuit court's judgment on that ground.   Our

determination that Glazer's has waived its right to arbitration

renders moots the remaining issues that Glazer's raises on appeal

because each of those claims presupposes that Glazer's is

entitled to arbitration.   See In re Marriage of Michaelson, 359

Ill. App. 3d 706, 717 (2005) (generally, a court will not review

moot issues, and an issue is moot if no actual controversy

exists).

                            CONCLUSION

     For the foregoing reasons, we affirm the judgment of the

circuit court.

     Affirmed.

     JOSEPH GORDON and McNULTY, JJ., concur.


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