                       Illinois Official Reports

                               Appellate Court



                   Glover v. Fitch, 2015 IL App (1st) 130827



Appellate Court   TIFFANY L. GLOVER, by National Heritage Insurance Company,
Caption           Plaintiff-Appellant, v. BEVERLY FITCH, Defendant-Appellee.



District & No.    First District, Third Division
                  Docket No. 1-13-0827



Filed             June 24, 2015



Decision Under    Appeal from the Circuit Court of Cook County, No. 11-M1-13422; the
Review            Hon. James Snyder, Judge, presiding.



Judgment          Affirmed.



Counsel on        Shelist Law Firm, LLC, of Chicago (Samuel A. Shelist, of counsel),
Appeal            for appellant.

                  Fabrizio, Hanson, Peyla & Kawinski, P.C., of Joliet (Jamie Shimer, of
                  counsel), for appellee.



Panel             PRESIDING JUSTICE PUCINSKI delivered the judgment of the
                  court, with opinion.
                  Justices Hyman and Mason concurred in the judgment and opinion.
                                               OPINION

¶1       This case arises from an automobile collision in which Tiffany Glover suffered personal
     injuries and Glover’s insurer, plaintiff National Heritage Insurance Company (National
     Heritage), suffered $7,224 in damages. National Heritage brought this subrogation action as
     the subrogee of Glover against defendant, Beverly Fitch, who was allegedly negligent in
     causing the collision. The case was assigned to arbitration and the arbitration trial date
     occurred with defendant and defendant’s counsel’s failing to appear. An arbitration award was
     entered in favor of National Heritage. Defendant filed a motion to reject or vacate the
     arbitration award, arguing that defense counsel never received notice of the arbitration hearing
     date. The circuit court granted defendant’s motion and the case proceeded to trial, whereupon a
     jury trial was held and resulted in a verdict for defendant. Plaintiff appealed, arguing that the
     arbitration award should not have been vacated due to alleged lack of postcard notice to
     defense counsel because counsel has an affirmative duty to follow his own case and knew that
     the case had been assigned to arbitration. Defendant argued that we lack jurisdiction of the
     appeal because plaintiff did not seek Illinois Supreme Court Rule 304(a) language (Ill. S. Ct. R.
     304(a) (eff. Feb. 26, 2010)) to permit an earlier appeal from the order vacating the arbitration
     award and that, in the alternative, the court did not abuse its discretion in vacating the
     arbitration award where defense counsel was not sent notice of the arbitration date.
¶2       Regarding jurisdiction, we hold that parties are not required to appeal an interlocutory
     order within 30 days of entry of that order but may instead choose to appeal upon a final
     judgment in the case. Parties may, of course, seek the inclusion of Illinois Supreme Court Rule
     304(a) language (Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010)) in an interlocutory order to be able to
     immediately appeal that order, but they are not required to do so and may, instead, wait until
     entry of a final judgment.
¶3       As to the merits of the case, we hold that the court did not abuse its discretion in vacating
     the arbitration award. Although the circuit court relied on the fact that defense counsel did not
     receive postcard notice of the hearing date because of the circuit court clerk’s delay in properly
     entering his appearance, we caution that attorneys still have a duty to keep track of their cases
     on the docket. In this case defense counsel apparently did not inquire as to the date of the
     arbitration hearing, though he knew the case was on the arbitration calendar. Given our
     deferential standard of review, however, we cannot say that the circuit court abused its
     discretion in vacating the default judgment based on the failure to send notice of the hearing
     date to defense counsel. While the circuit court focused on the error by the clerk’s office in
     entering defense counsel’s appearance, we hold that the arbitration center’s failure to provide
     the required notice pursuant to Illinois Supreme Court Rule 88 (eff. June 1, 1987) and the
     arbitration panel’s failure to inquire whether all parties received due notice pursuant to Illinois
     Supreme Court Rule 91(a) (eff. June 1, 1993) also support the circuit court’s determination to
     vacate the arbitration default judgment.

¶4                                        BACKGROUND
¶5       On February 4, 2011, defendant Beverly Fitch was allegedly negligent in an automobile
     collision with Tiffany L. Glover. Glover suffered personal injuries as well as property damage.
     Glover’s insurer, National Heritage, paid Glover damages and brought this action on May 11,
     2011 against Fitch as Glover’s subrogee to recover the damages it paid.

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¶6         On August 31, 2011, Fitch’s counsel filed his appearance, jury demand, and answer. The
       case was transferred to assignment to arbitration on November 10, 2011. A discovery closure
       date was entered on November 10, 2011.
¶7         On December 11, 2011, plaintiff filed and mailed out an Illinois Supreme Court Rule 90
       (eff. July 1, 2008) and Rule 237 (eff. July 1, 2005) package for arbitration to Fitch’s counsel.
       The Rule 90 and Rule 237 package did not include or reference the arbitration hearing date.
¶8         On January 13, 2012, Fitch’s counsel filed a motion to continue the arbitration, to reopen
       discovery, and to consolidate. The motion was noticed for January 25, 2012. On that date, the
       motion to continue arbitration was granted and the matter was reset for arbitration on March
       27, 2012. On February 21, 2012, plaintiff filed a motion to continue the March 27, 2012
       arbitration date and to amend the complaint to include personal injuries.
¶9         Plaintiff was granted leave to file an amended complaint and filed an amended complaint
       on March 14, 2012, which added a count for subrogation and a count for personal injuries. The
       discovery closure date was continued to May 1, 2012. The March 27, 2012 arbitration hearing
       date was stricken upon plaintiff’s motion and a new arbitration hearing date was not set at that
       time.
¶ 10       On April 13, 2012, an arbitration notice setting the arbitration date for June 27, 2012 was
       sent to plaintiff’s counsel, but defense counsel was not sent postcard notice of the arbitration
       hearing date.
¶ 11       On May 9, 2012, defendant answered plaintiff’s amended complaint, admitting to the
       collision but denying negligence. Plaintiff then filed a second Rule 90 and Rule 237 package,
       including medical bills of $6,301.27 and a payoff of Glover’s automobile loan, for the total
       amount of $12,770.97.
¶ 12       On June 14, 2012, defense counsel filed a motion to consolidate this case with an action
       filed by State Farm, defendant’s insurer, related to the same automobile collision. Defense
       counsel renoticed the same motion to consolidate on July 18, 2012.
¶ 13       Defendant and defense counsel both failed to appear on the June 27, 2012 arbitration date.
       An arbitration award was entered in favor of Glover and plaintiff National Heritage for
       $8,142.52 for property damage and $7,774 for personal injuries damages. The arbitration
       award noted that both defendant and her counsel were “not present.”
¶ 14       Defendant renoticed the motion to consolidate on July 26, 2012.
¶ 15       Defendant filed a rejection of the arbitration award on July 27, 2012, and moved to vacate
       the arbitration award, arguing that notice of the arbitration hearing date was not received via
       postcard notice. Plaintiff National Heritage and Glover filed a motion to debar defendant’s
       rejection of the award and, in the alternative, to bar testimony from defendant Fitch as a
       sanction.
¶ 16       At the hearing on defendant’s motion to vacate the arbitration award, defense counsel
       explained that he attempted three times to present a motion to consolidate the cases but was in
       the wrong room or at the wrong time or did not show up on the dates of presentment each time
       for the motion. The court indicated that it asked the court clerk to look up the computer record
       and the record reflected that defense counsel’s appearance was not entered by the circuit court
       on the date that counsel’s appearance was filed. Rather, defense counsel’s appearance was
       entered into the clerk’s records on January 4, 2012 but reflected the filing date of August 31,
       2011. The court stated that it found that this was the record in this case. The court then stated:

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               “[Counsel’s] frustration is well-taken, as is mine. I’ve been working in some detail, as
               has [another judge], with the clerk of the circuit court to get the clerk of the circuit court
               to record appearances and other documents filed for the record. In most cases, it
               doesn’t matter. *** But, here, we have the situation where the arb[itration] center has to
               send out the notice. The arb[itration] center did not have that appearance. They did file
               it; it was filed properly; it wasn’t recorded by the clerk. It was recorded by the clerk
               once after the fact, perhaps, because of some of the work that I’m trying to do to
               encourage the clerk to perform these fundamental aspects of the job of the Circuit
               Court of Cook County ***.
                    The Motion to vacate the arb[itration] award is granted.”
¶ 17       The court entered an order granting the motion to vacate the award on September 26, 2012.
       This order did not contain Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010) language.
¶ 18       Plaintiff moved to reconsider, but the trial court entered an order denying plaintiff’s motion
       to reconsider on December 17, 2012. This order also did not contain Illinois Supreme Court
       Rule 304(a) (eff. Feb. 26, 2010) language.
¶ 19       The case was transferred for a jury trial status. On December 11, 2012, the presiding
       municipal judge indicated the matter was not to be rearbitrated.
¶ 20       A jury trial took place on February 23, 2013, on Glover and National Heritage’s claims
       only, and not on the State Farm claims in the separate pending action, as the cases were not
       consolidated. The verdict was for defendant. Plaintiff National Heritage and Glover appealed
       within 30 days of the verdict.

¶ 21                                              ANALYSIS
¶ 22       We first address defendant’s argument that we lack jurisdiction of this appeal because
       plaintiff did not seek Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010) language to
       permit an earlier appeal from either the order vacating the arbitration award or the order
       denying plaintiff’s motion to reconsider the order granting the motion to vacate. Plaintiff does
       not cite any authority requiring a party to seek Rule 304(a) language and take an interlocutory
       appeal. The Uniform Arbitration Act provides that “[a]ppeals may be taken in the same
       manner, upon the same terms, and with like effect as in civil cases.” 710 ILCS 5/18 (West
       2012). Illinois Supreme Court Rule 303(a)(1) provides for appeals within 30 days of entry of a
       final judgment. Ill. S. Ct. R. 303(a)(1) (eff. May 30, 2008). “[T]he law is settled that an appeal
       from a final judgment permits review of all preceding nonfinal orders that produced that final
       judgment.” Farmers Automobile Insurance Ass’n v. Wroblewski, 382 Ill. App. 3d 688, 695
       (2008) (citing Pekin Insurance Co. v. Pulte Home Corp., 344 Ill. App. 3d 64, 67-68 (2003)). If
       a party does not appeal an interlocutory arbitration order within 30 days, it may do so upon a
       final judgment. See, e.g., Anderson v. Financial Matters, Inc., 285 Ill. App. 3d 123, 135 (1996)
       (the failure to appeal the order compelling arbitration did not preclude review of that order
       when the final judgment was entered). We continue to address appeals from prior arbitration
       orders upon appeal after final judgment. See, e.g., Nelson v. Country Mutual Insurance Co.,
       2014 IL App (1st) 131036, ¶¶ 1, 8 (reviewing a prior order entered by the trial court vacating
       an arbitration award and granting summary judgment on appeal after final judgment was
       entered, where the plaintiff did not appeal the final judgment itself but the prior interlocutory
       arbitration order). Plaintiff filed this appeal within 30 days of the verdict. We have jurisdiction
       and proceed to address the appeal from the order vacating the arbitration award.

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¶ 23        Turning to the merits of plaintiff’s argument, plaintiff National Heritage argues that the
       arbitration award should not have been vacated due to alleged lack of postcard notice to
       defense counsel because counsel has an affirmative duty to follow his own case and knew that
       the case had been assigned to arbitration.
¶ 24        Under Supreme Court Rule 91, the failure of a party to attend a mandatory arbitration
       hearing constitutes a waiver of that party’s right to reject the award and represents a consent to
       the entry of judgment by the circuit court in accordance with the award. Ill. S. Ct. R. 91 (eff.
       June 1, 1993). Rule 91(a) is mandatory, so that a party who fails to appear at an arbitration
       hearing either in person or through counsel is automatically barred from rejecting the
       arbitration award without further action by the circuit court. Jackson v. Bailey, 384 Ill. App. 3d
       546, 548 (2008). The barred party’s recourse is to file a motion to vacate as provided in Rule
       91(a), and a party absent from an arbitration hearing has the burden of showing that his or her
       absence was reasonable or the result of extenuating circumstances. Jackson, 384 Ill. App. 3d at
       549. The supreme court rules regarding mandatory arbitration should be read in conjunction
       with each other and in harmony with the rest of the law. Jackson, 384 Ill. App. 3d at 549.
       Illinois Supreme Court Rule 91(a) limits the circumstances under which a party failing to
       appear at an arbitration can file a motion to vacate the judgment under section 2-1301 or
       section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1301, 2-1401 (West 2012)) to
       circumstances “[w]here the failure to attend was inadvertent.” Ill. S. Ct. R. 91, Committee
       Comments. See also Jackson, 384 Ill. App. 3d at 549.
¶ 25        We agree that attorneys have the duty to monitor their cases on the docket. Because
       attorneys have a duty to act with reasonable diligence in representing their clients’ interests,
       including tracking cases and learning the date upon which a hearing is to occur, a party’s lack
       of notice of the date of a hearing does not necessarily excuse the party’s failure to appear at the
       hearing. Jackson, 384 Ill. App. 3d at 549. See also Tiller v. Semonis, 263 Ill. App. 3d 653, 657
       (1994) (holding attorneys have a legal and ethical duty to act with reasonable diligence in
       representing their clients’ interests, including tracking their cases and learning the date upon
       which a hearing is to occur).
¶ 26        Illinois Supreme Court Rule 91(a) provides that an arbitration hearing can proceed in a
       party’s absence only where there has been “due notice”:
                 “The arbitration hearing shall proceed in the absence of any party who, after due
                 notice, fails to be present. *** The failure of a party to be present, either in person or by
                 counsel, at an arbitration hearing shall constitute a waiver of the right to reject the
                 award and a consent to the entry by the court of a judgment on the award. In the event
                 the party who fails to be present thereafter moves, or files a petition to the court, to
                 vacate the judgment as provided therefor under the provisions of the Code of Civil
                 Procedure for the vacation of judgments by default, sections 2-1301 and 2-1401, the
                 court, in its discretion, in addition to vacating the judgment, may order the matter for
                 rehearing in arbitration, and may also impose the sanction of costs and fees as a
                 condition for granting such relief.” (Emphasis added.) Ill. S. Ct. R. 91(a) (eff. June 1,
                 1993) (noting 735 ILCS 5/2-1301, 2-1401).
¶ 27        An arbitration award issued without due notice is voidable. Jordan v. Bangloria, 2011 IL
       App (1st) 103506, ¶¶ 10-11; Juszczyk v. Flores, 334 Ill. App. 3d 122, 125-26 (2002). Illinois
       Supreme Court Rule 88 further provides that “[t]he procedure for fixing the date, time and
       place of a hearing before a panel of arbitrators shall be prescribed by circuit rule provided that

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       not less than 60 days’ notice in writing shall be given to the parties or their attorneys of
       record.” Ill. S. Ct. R. 88 (eff. June 1, 1987). Cook County Circuit Court Rule 1.1(a) (July 1,
       1976) requires that, unless notice is excused, “[n]otice of all proceedings in an action shall be
       given to all parties who have appeared and have not been found by the Court to be in default.”
       Illinois Supreme Court Rule 11 (eff. July 1, 2013) provides that “[i]f a party is represented by
       an attorney of record, service shall be made upon the attorney. Otherwise service shall be made
       upon the party.” Reading Illinois Supreme Court Rule 88, Cook County Circuit Court Rule
       1.1(a), and Illinois Supreme Court Rule 11 together, although notice is given to parties, after an
       attorney has filed an appearance for a party all notices should be sent to the attorney at his or
       her address of record. Ill. S. Ct. R. 88 (eff. June 1, 1987); Cook Co. Cir. Ct. R. 1.1(a) (July 1,
       1976); Ill. S. Ct. R. 11(a) (eff. July 1, 2013). Here, defense counsel appeared but was not sent
       notice.
¶ 28        National Heritage also argues that “[d]efendant’s counsel conspicuously fails to present
       a[n] affidavit that Fitch herself did not receive the ‘card’ setting the date; he only submits an
       Affidavit that his office did not receive the ‘card.’ ” On appeal, defendant states that neither
       defendant nor defense counsel received postcard notice. National Heritage makes no response
       to this assertion and does not claim that defendant ever received any postcard notice, thus
       apparently conceding this fact. Even if defendant had received postcard notice, it would not
       change the result in this case because by the time the arbitration hearing date was set, the
       clerk’s electronic docket did show the appearance of counsel and so counsel should have
       received postcard notice. Defense counsel’s appearance was entered into the clerk’s records on
       January 4, 2012; the hearing date was set for June 27, 2012.
¶ 29        While we reaffirm that counsel has the duty to follow his or her own cases and note that this
       court has affirmed denials of motions to vacate arbitration awards due to alleged lack of
       postcard notice (see Jackson, 384 Ill. App. 3d at 549-50; Tiller, 263 Ill. App. 3d at 657), the
       fact remains that we review determinations whether to vacate an arbitration award due to
       failure to receive notice under the relatively low abuse of discretion standard. The decision to
       grant or deny a motion to vacate under section 2-1301 is within the sound discretion of the trial
       court and thus will not be reversed absent an abuse of discretion or a denial of substantial
       justice. Jackson, 384 Ill. App. 3d at 548. We may find an abuse of discretion only where no
       reasonable person would take the position adopted by the trial court; that is, where the trial
       court acted arbitrarily or ignored recognized principles of law. Somers v. Quinn, 373 Ill. App.
       3d 87, 95-96 (2007).
¶ 30        Here, the court exercised its discretion to grant the motion to vacate. Plaintiff National
       Heritage and Glover merely repeat the same arguments. “A lawyer’s claim of lack of postcard
       notice is ultimately rooted in credibility and the trial court’s assessment of it.” Tiller, 263 Ill.
       App. 3d at 657. Defense counsel made the same argument below in its motion to debar and its
       motion to reconsider.
¶ 31        The circuit court acknowledged the well-recognized principle that attorneys have the
       responsibility to monitor their cases but found that defense counsel was not provided the
       required notice of the hearing date. Notice of an arbitration hearing date is also required under
       the law. We cannot find that no reasonable person would take this position.
¶ 32        While the court specifically based its decision to grant the motion to vacate the arbitration
       award on the fact that there had been problems with the issuance of arbitration notices due to
       the clerk’s office’s failure to timely record attorney appearances, we further note the glaring

                                                    -6-
       omission by the arbitration center and the arbitration panel in inquiring as to whether defense
       counsel was given “due notice” pursuant to Supreme Court Rule 91 prior to proceeding with
       the arbitration hearing and then entering a default judgment. Supreme Court Rule 91 allows for
       an arbitration hearing to proceed in the absence of a party only where there has been “due
       notice.” The arbitration hearing should not have been allowed to proceed in the first place due
       to the lack of proper notice. Had the arbitration center or the arbitration panel properly inquired
       into whether defense counsel received notice of the hearing date, the default judgment and
       subsequent litigation regarding the motion to vacate the default judgment, including this
       appeal, could have been avoided.
¶ 33       We caution that attorneys are still under a duty to monitor their cases and a failure to
       receive notice is not an excuse to vacate a default judgment in every case. But here plaintiff has
       not shown how the court abused its discretion. We therefore are bound to affirm.

¶ 34                                          CONCLUSION
¶ 35       Regarding jurisdiction, we hold that parties are not required to appeal an interlocutory
       order within 30 days of entry of that order but may instead choose to appeal upon a final
       judgment.
¶ 36       As to the merits we hold that, while attorneys have a duty to keep track of their cases on the
       docket, the court did not abuse its discretion in vacating an arbitration award where
       defendant’s counsel did not receive notice of the arbitration hearing date because the clerk’s
       office did not timely enter counsel’s appearance, and also where the arbitration center and
       arbitration panel did not inquire into whether there was “due notice” prior to proceeding with
       the arbitration hearing and entering a default judgment.

¶ 37      Affirmed.




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