*1
defendant,
citizens,
peers
common
jurors
state. The
are
Third,
judges
is
prosecutors
state actors.
the conduct of our
statute,
law,
ethics,
opinion. Jury
public
case
rules of
governed
outside
private and not to be examined unless some
deliberations are
Tanner,
For all of these we reconsideration, a retrial. denying, upon the defendant’s motion bar provisions statutory provisions Neither constitutional nor bar a retrial under the circumstances of this case.
Affirmed; cause remanded. SPOMER, JJ.,
WELCH and concur. al., FIRM, Plaintiffs-Appellees, JEFFREY WOODS et v. PATTERSON LAW P.C., al., Defendants-Appellants. et (1st Division) First District No. 1 — 08—0066 Opinion filed March
GARCIA,J., concurring. specially
WOLFSON, J., dissenting. *2 (Patricia
Mulherin, Varchetto, EC., Argentati L. Rehfeldt & of Wheaton counsel), Chicago, appel- O’Grady, Nyeste, of and Shana A. of and James T. lants. (Edward Associates, EC., Joyce Chicago T. Joyce
Edward T. & of Carroll, counsel), appellees. Robert D. of opinion ROBERT E. GORDON delivered JUSTICE court: Supreme to Illinois Court interlocutory appeal pursuant
This is an 307(a)(1) (188 307(a)(1)) from an order of the circuit Ill. 2d R. Rule joint County denying court of defendants’ Cook the conclusion stay judicial proceedings pending and to all affirm. of that arbitration. We
BACKGROUND Nelson, Grills, Inc., Woods, Tango Jeffrey Plaintiffs Michael in the circuit Inc., malpractice action Group, legal The Helix filed a Firm, PC., Patterson Law County against defendants court of Cook alleged that defendants breached Plaintiffs and Thomas Patterson. in to defend defending failing in professional duties actions, involv- an action entry and detainer four consolidated forcible note, alleging and an action alleged promissory breach of a ing to a plaintiffs pursuant represented Defendants unpaid pay. vacation provi- an arbitration agreement, which contained engagement written engagement the written provision sion. states, part: in pertinent arising relating out of or
“Any controversy, dispute or claim services, obligations fees, legal charges, performance our shall letter, aspects representation of our in this or other reflected Chicago accordance binding arbitration through be resolved Associa- Arbitration in effect of the American the rules then any may rendered be entered tion, on the award judgment acknowledge agreeing that You having jurisdiction thereof. court bring an action arbitration, your you relinquishing are jury trial.” and to a in court Alleged Unpaid Legal
A. Defendants’ Lawsuit to Recover Fees action, Prior present complaint defendants filed a case, County circuit court against plaintiff of Cook Woods. that $47,000 alleged plaintiff that owed them over Woods 7, 2005, unpaid legal fees. On November defendants obtained a default judgment against plaintiff day, Woods. That same defendants filed a $45,000 monies, motion in one requesting plaintiff Woods’ held accounts, defendants’ client trust be turned over to defendants satisfaction of the judgment. default The trial court transferred the motion for Judge a turnover order to Alexander E White.1 16, 2005,
On plaintiff legal ap- November counsel filed an Woods’ pearance day, Woods, on behalf of That same his through Woods. at- torney, filed judgment a motion to vacate the default and to extend the time to responsive pleading. file a On November appeared before the trial court on Woods’ motion to vacate judgment. default At hearing, requested briefing granted schedule. The trial court request defendants’ and ordered plaintiff Woods to answer complaint on or before December
That same day, defendants appeared Judge before on their White motion for a turnover Woods, order for funds. Neither plaintiff nor his attorney, appeared at the motion for the turnover order.2Defendants’ *3 motion for a turnover order granted was and transferred from defendants’ client trust account. 2, 2005,
On December plaintiff filed an Woods answer to defen- dants’ complaint, which sought collection of the alleged unpaid legal 11, January 2006, fees. On plaintiff motion to Woods’ vacate the default judgment granted. was judgment vacated, After the default was plaintiff Woods served discovery requests. defendants with Defendants did respond but, not to the discovery requests rather, voluntarily
1Although pending Judge Burke, the “fee” case was before Dennis J. Judge defendants’ motion for a turnover order was set to be heard White. At that time in the County, Judge law division of the circuit court of Cook supervising judge White was the of the tax and miscellaneous remedies section of the supplemental proceedings. law division and heard collection court, 2In plaintiffs their brief to this contend that defendants did not provide plaintiff notice of the motion for a turnover order to Woods. To contrary, they provided defendants contend hearing that notice of the to plaintiffs’ attorney 28, 2005, hearing Judge at the November before Burke. (or thereof) Although hearing discuss the notice of the lack at great length, we find that whether Woods had notice of the turnover hearing does not bear on the case at bar. Illinois 2—1009 of the Code pursuant to section
dismissed the case (West 2004)). (735 (Code) Procedure ILCS Civil 5/2—1009 Action Malpractice Plaintiffs’ Legal B. legal malpractice 7, 2006, filed the instant plaintiffs September
On 13, 2006, filed an defendants against defendants. On October action 2007, 14, filed February On defendants jury demand. appearance 2—615 of complaint pursuant to section plaintiffs’ to dismiss a motion 2004)). (West (735 Defendants’ motion ILCS Code 5/2—615 sec- comply complaint failed plaintiffs’ dismiss asserted that Code, allegations 603, 606, 2—613 of the tions 2— 2— statements, were and concise complaint plain were not plaintiffs’ instru- counts, the written did not attach properly separated agreement), and (engagement the claims were based ment on which 206, 603, 2—613 exhibits. 735 ILCS did not attach referenced 2— 5/2— (West 2004). mo- 8, 2007, denied defendants’ the trial court On March pleading responsive to file a and ordered defendants tion to dismiss 2007, subpoena 25, defendants issued April On plaintiffs’ complaint. 2007, 14, defendant served May On party. to a third for documents and written inter- documents requests produce plaintiffs with rogatories. to dismiss 2007, filed a second motion 14, defendants May
On (735 the Code ILCS to section 2—615 of complaint pursuant plaintiffs’ (West 2004)). motion, 2—615 defendants section the second 5/2—615 plaintiffs because complaint should be dismissed plaintiffs’ argued to their engagement agreement parties’ copy did not attach a court denied May 21, the circuit complaint. On plaintiffs’ to answer defendants to dismiss and ordered second motion complaint. of particulars for a bill 4, 2007, filed a demand June
On defense, affirmative In their plaintiffs’ complaint. and an answer must be submitted disputes parties’ that the defendants asserted contained provision to the arbitration pursuant 19, 2007, served plaintiffs On June agreement. engagement 3, 2007, July discovery. On written to defendants’ answers particulars. for a bill demand to strike defendants’ filed a motion demand strike defendants’ plaintiffs’ August On August granted. On was particulars for a bill of *4 for Woods deposition of with a notice plaintiffs served served 18, August 2007. On September interrogatories. written compel filed a motion 25, 2007, September On from all 2007, hearing argument after On December arbitration. denying entered an order parties, the trial court trial court’s order was the compel Incorporated arbitration. into the 12, 2007, hearing. The trial court held transcript from the December legal fees did not complaint seeking alleged unpaid that defendants’ right compel amount to defendants’ waiver of their stated that because the arbitration between the arbitration would be conducted in accordance with the rules of the American Association in effect at the time of arbitration. Arbitration 48(a) Association in ef- Rule of the rules of the American Arbitration judicial proceeding by a fect at the time of the case at bar stated: “No deemed party relating subject matter of the arbitration shall be a waiver of the to arbitrate.” Am. Arb. Ass’n Com. party’s R-48(a) (2007). However, the court did find that defendants trial filed compel waived their arbitration because defendants had two motions to dismiss and a demand for a bill of actively voluntarily participated discovery by defendants had is- suing interrogatories plaintiffs, by issuing docu- subpoena third ments on a party appeal. case at bar. Defendants
ANALYSIS noted, As appeal was taken from the trial court’s denial of compel defendants’ motion to Illinois Rule Supreme Court 307(a)(1) (188 307(a)(1)) Ill. 2d R. an provides party appeal can interlocutory granting, modifying, refusing, order dissolving, or refus ing modify injunction. to dissolve or an Hair Bishop v. We Care (2000). Development Corp., App. “A motion to compel analogous arbitration is injunctive to a motion for relief.” Union, Bishop, citing Transit Amalgamated Local 900 v. Regional Transportation Suburban Bus Division Authority, Where, here, 3d 334 as an interlocu tory appeal brought is pursuant Supreme to Illinois Court Rule 307(a)(1) (188 307(a)(1)), Ill. 2d R. controverted facts or the merits Bishop, only the case are not decided. 3d at 1189. The question in such appeal showing is whether there was a sufficient to affirm granting denying the order of the trial court or the relief Thus, requested. Bishop, the standard of interlocutory appeal generally review an is whether the trial court abused in granting denying requested its discretion relief. Bishop, 316 at 1189. noted,
As the trial court denied defendants’ motion to finding after that defendants waived their to arbitrate that, dispute. firstly by operation instant The trial court found 48(a) Rule rules of the American Arbitration Association ef-
994 bar, filing in a feet at the time of the case at defendants’ actions alleged unpaid legal for fees did not complaint against plaintiff Woods dispute. the instant right result in waiver of defendants’ to arbitrate However, right find that defendants waived their the trial court did to dismiss defendant had filed two motions compel arbitration because actively and had and voluntar- and a demand for a bill of issuing interrogatories plaintiffs, ily participated discovery by in the case by party for documents on a third issuing subpoena a at bar. 3d Bishop, App. of waiver. 316 Ill. finding
Illinois courts disfavor a (1993); Video, Inc., 1191, App. v. C&M 248 Ill. 3d 654 citing at Jacob Apex Engineer- Co. v. Construction & Development First Condominium (1984); Kenwick, Ill. App. 3d Brennan v. 97 ing Corp., App. 126 Ill. 843 (1981). However, dispute arbitration of a right compel 1040 the Ill. right. Bishop, contractual 316 any can be waived as with other Co., 1191, App. citing Wangler Ure v. Construction App. 3d at (1992). right to party’s will find waiver of a 3d 492 Illinois courts is inconsistent with compel party’s arbitration when a conduct the clause, indicating right an abandonment of thus 1191, v. citing Ill. 3d at Burnett Bishop, arbitration. 316 Safeco (1992). Additionally, party a waives Co., App. 3d 167 Insurance to a court for by submitting arbitrable issues right its to arbitrate v. Joint citing 3d at Kostakos KSN Bishop, decision. consider 533 Illinois courts also Venture No. any to arbitrate and right assertion of its delay party’s the plaintiff. Bishop, prejudice delay caused citing by court abused its discretion contend that the trial Defendants Specifically, compel arbitration. denying their did because defendants abused its discretion argue that the trial court for decision. Defendants issues to the trial court not submit arbitrable 2—615 motions to dismiss filing two section argue that their actions inconsistent with were not particulars for a bill of and their demand argue that their actions Defendants also right to arbitrate. their and written produce documents requests serving plaintiffs party, a third documents to subpoena for interrogatories, serving deposition Woods with a notice serving plaintiffs further Defendants to arbitrate. right inconsistent with their were not actions in that defendants’ correctly court ruled that the trial contend legal fees alleged unpaid Woods complaint against plaintiff filing a the instant to arbitrate result in waiver of did not 48(a) of the rules of of Rule operation because of dispute of the case at at the time in effect Arbitration Association American they their Finally, bar. defendants also remind this court that asserted right in their to the arbitrate as an affirmative defense answer plaintiffs’ complaint.
Plaintiffs contend that the trial court did not abuse its discretion Plaintiffs, denying defendant’s motion to despite holding contrary, firstly argue the trial court’s by pursuing defendants waived their to arbitrate the fee case against plaintiff Woods. Plaintiffs contend that defendants’ actions following through judgment pursuing the fee case to default collection of damage judgment amount in the default in the turnover proceedings amounted to parties’ defendants’ waiver of the provision. Secondly,plaintiffs argue that defendants waived to arbitrate Specifically, actions case at bar. *6 plaintiffs argue that in filing defendants’ actions two motions to dismiss particulars, issuing and a bill of interrogatories plaintiffs, to issuing subpoena a for party, by documents to a third and a filing notice for deposition of plaintiff Woods constituted actions result- ing in parties’ waiver of the provision. follow,
For the reasons that we find that the trial court did not abuse its by denying discretion compel defendants’ motion to arbitra- tion. Before proceeding further, we note our with the trial finding court’s against that defendant’s action plaintiff Woods for al- leged unpaid legal fees did not waive defendants’ compel to arbitration of the current dispute. Defendants’ suit to alleged recover unpaid legal plaintiffs’ fees and against suit alleged for legal malpractice do not arise from the same lawsuit and required have consideration of the same issues. Yates v. Doctor’s As- sociates, Inc., 193 App. such, 3d 441 As conduct relating to the suit to alleged unpaid legal recover fees should bearing have no on whether compel defendants waived their to arbitration in the current dispute.
However, we do find that defendants’ conduct in the case at bar waived their right compel to arbitration. noted,
As defendants filed two motions plaintiffs’ to dismiss (735 complaint pursuant to section 2—615 of Code ILCS 5/2—615 (West 2004)), filed a demand for subpoena a bill of issued a for documents to a third party, plaintiffs requests served to produce interrogatories, documents and written plaintiffs served with a deposition plaintiff notice of Woods. court,
In their brief to this defendants’ cite to Atlas v. 7101 Partnership, (1982), 3d 236 and to Kostakos v. Joint KSN Venture (1986), No. support argument 553 to they did not waive their right compel to their ac- tions in the dispute. instant
996 complaint, an amended complaint, in Atlas filed a plaintiff weighing After preliminary injunction.
and two motions 47(a) rule of the then Rule against actions what was plaintiffs Association, the court determined American Arbitration making finding, compel his did not waive amended filing complaint, a plaintiffs court noted that actions injunctions constituted preliminary motions for complaint, and two Atlas, maneuverings.” legal “limited were Atlas, in the case at bar
However, defendants’ actions unlike actively participated Significantly, defendants not of a limited nature. by issuing a interrogatories plaintiffs, discovery by issuing filing a notice of party, a third for documents to subpoena (noting deposition plaintiff Woods. depositions or take interrogatories did not file that the defendants compel motion to of the defendants’ affirming granting a trial court’s Associates, v. 1000 West arbitration); Ltd. Laya Murchie Schroeder (2001) (noting that LLC, Lofts, trial court’s order discovery affirming engaged in arbitration). note that the We plaintiffs’ motion to denying the in arbitra- readily available subpoenas is not interrogatories use American Arbitration rules of the according to the proceedings tion agree- procedures those Association, rules leave use of as the the arbitrator. the discretion of to arbitration or to ment of the large is limited availability depositions also note that We even of the arbitrator and is left to the discretion complex arbitrations in those situations. summons, a quash in Kostakos filed a motion
The defendants a motion necessary parties, to join dismiss for failure appoint petition to a reply plead properly, for failure to dismiss *7 motion for facts, produce, a request a receiver, request a to admit and a order, of demand for a bill a protective issuance of a taken documents, depositions in participated and to produce motion affirming the trial Kostakos, 3d at by plaintiff. court found that arbitration, the Kostakos compelling order court’s arbitration, because the right their had not waived the defendants court for to the trial issues submit arbitrable did not defendants making this 536-37. In Kostakos, App. 3d at determination. interrogatories or not file did noted that defendants the court finding, Kostakos, in available not depositions, procedures take file bar did in the case at However, unlike plaintiff of Woods. deposition notice for the and did file interrogatories in arbitration readily available are not noted, procedures these As Arbitration As- according to the rules of the American proceedings sociation, procedures as the rules leave use of those discretion of the arbitrator. of the to arbitration or to the to their responses in the case at bar received Defendants already noted is that we have propounded interrogatories, procedure hand, that in the other it is true readily not available arbitration. On documents, although third-party subpoena issued a although they received such documents. It is also true that no Woods, there deposition defendants filed a notice for the of However, inquiry focus of in the deposition. proper was no our inconsistently right case at bar is whether defendants with their acted attempting to further the defense of forum, by actively participating judicial lawsuit not whether regard. Bishop, defendants were successful in that participation practice 1191. The active in this case was the motion attempt discovery through filing defendants and their to obtain for interrogatories depositions. participated Since defendants procedures readily arbitration, available in say we cannot that the trial court abused its finding discretion that defendants waived their dispute. to arbitrate this defendants’ actions case at bar were not party consistent with those of a intent on retain- ing the right to arbitrate. dissent,
If we were logic to follow the it provide party with the option obtaining attempting to obtain discovery courthouse, when discovery is not a matter of under the process, discovery and then when process has been request concluded designed arbitration. Arbitration was as an efficient relatively Atlas, inexpensive settling disputes. method of App. 3d at 240. It is an dispute process. alternate resolution If we al- party low a to file or defend a court action with the intent to obtain discovery, the entire dispute process alternative resolution loses its major objective. parameters The costs and the time for the party litigants prohibitive. become
CONCLUSION foregoing reasons, For the judgment we affirm the the circuit County. court of its say Cook We cannot trial court abused by finding discretion to arbitrate defendants waived bar, this dispute by actively due to their actions in the case at participating discovery process furtherance of their lawsuit.
Affirmed.
998 GARCIA, concurring: specially
JUSTICE to the trial separately emphasize I write the deference we owe which, order, my judgment, determines court our review of its interlocutory appeal. the outcome of this subject is It is settled law that a motion to arbitration Schroeder, of review of an abuse of discretion. the deferential standard interlocutory scope “[T]he 3d at 1093-94. of review an determining whether the trial court appeal normally is limited to interlocu- granting refusing requested abused its discretion Video, Inc., 654, 664, tory relief.” Jacob v. C&M 3d 618 (1993). N.E.2d 1267 the abuse of discre- supreme recognized Our court has also “ of review available tion standard is ‘the most deferential standard ” Coleman, People v. at all.’ exception
with the
of no review
A Basic Guide
Davis,
366, 387,
(1998), quoting M.
I must also to recover al- relating to the suit conduct that “defendants’ sertion bearing on whether fees should have no unpaid legal leged dispute.” current compel waived to file suit decision that the defendants’ 995. I submit fees, unpaid legal engagement agreement where the written play unpaid arbitration clause would a role in the defendants’ action, legal suggests lawyers fees as found a forum of choice in the noting very *9 circuit court. It also bears that it is this agreement in which the agreed relinquish “right to bring Yet, to an action in jury they brought court and to a trial.” unpaid legal And, fees action in they appear- court. when filed their case, they “jury ance the instant also filed a trial” demand.
I submit this case turns on our standard of Through review. review, lens of that standard of showing there was a sufficient Schroeder, sustain the order of the trial App. court. See 319 Ill. 3d at Here, 1093-96. the trial court lawyers determined the as defendants clause; failed to act in accordance with the arbitration the defendants persuaded have not us to disturb the trial court’s ruling.
Because reasonable persons can differ as to the trial court’s deci- sion, dissent, as say confirmed we cannot as a matter of law that the trial court abused its discretion. See 142 App. Ill. 3d at 537. WOLFSON,
JUSTICE dissenting: Arbitration is a favored settling disputes method of in Illinois. (1986). Kostakos v. 533, KSN Joint Venture 142 App. No. Ill. 3d 536 Since efficient, arbitration is an relatively inexpensive method of set- tling disputes, “a waiver of a lightly arbitrate is not to be (1982). inferred.” Atlas v. 7101 Partnership, 109 Ill. App. 3d 240 The had an admittedly valid arbitration clause in their engagement agreement. They said their disputes “shall be resolved through binding arbitration,” in accord with American Arbitration As- (AAA) sociation rules. The clause ended with plaintiffs words the now say do apply: not acknowledge “You by agreeing arbitration, you are relinquishing your right bring an action in court and to a jury trial.”
By agreeing rules, to be bound by AAA the parties adopted Rule 48(a): judicial “No proceeding by party relating subject to the matter of the arbitration shall be deemed a waiver of the party’s right to R-48(a) (2005). arbitrate.” Am. Arb. Ass’n Com.
True, party can act in a manner which is inconsistent with its Associates, contractual to arbitrate. Schroeder Murchie Laya (2001). LLC, Ltd. v. 1000 Lofts, West App. 1095-96 But legal “limited maneuverings” party of a do not waive its Rule 48(a) right Atlas, to arbitrate. 3d at 241.
The existence of a waiver is “by type determined of issues submitted, the number of papers filed with the court.” Kosta- judicial
kos, Simply participating 3d at 536-37. compel an abandonment forum does not demonstrate Kostakos, dismiss, neither of them Here, filed two motions to the defendants Instead, file a counterclaim. They issue. did not raising an arbitrable claiming a defense filed an answer that contained an affirmative they but deposition, a notice for dispute. They filed right to arbitrate subpoena for docu- They third-party issued a deposition. there was no They interrogatories, filed ments, but received no documents. they likely most the same kind of information they received They did wait a proceeding. been entitled to an have arbitration, delay but filing a motion long time before Care Hair Bishop v. We in Kostakos longer no than was 1182, 1192 Development Corp., filing before waited 15 months Bishop, the defendants defense. clause as an affirmative the arbitration setting up answer delay, by the they prejudiced contend were did not plaintiffs. case, prejudice found no court, as do we venue did not constitute Contesting Bishop, *10 complaint, an Filing at 1192. a Bishop, waiver did injunctions preliminary motions for complaint, and two amended 48(a) provision “no waiver” of arbitration the AAA Rule not defeat Atlas, at 241. There, the and Kostakos. between this case
I see no real difference procedural in numerous participated answer and defendants filed an summons, a motion service of quash a motion to including matters — motion to dismiss necessary parties, a join failure to to dismiss for receiver, a a appoint reply petition a to a plead properly, failure for issuance of a facts, a motion request produce, to admit request a demand order, demand for a bill protective depositions documents, participation of certain production moved to dismiss addition, In the plaintiff. the taken at issue— copy to attach a complaint for failure the here, Kostakos, no In as in this case. happened something the held to the trial court. We submitted issues were arbitrable not so inconsistent judicial forum “was participation an abandonment as to indicate right to arbitrate the contractual 537. right.” contractual of their trying slip out short, are court the trial happen. I believe not let it should duty to arbitrate. We motion the defendants’ it denied discretion when abused its “logic of the consequences should dire envisions majority to fulfill their requiring parties I how dissent” be followed. do not see spun by calamitous scenario obligations produce contractual (9 seq. §1 et majority. Just like the Federal Arbitration Act U.S.C. (Preston (2000)) favoring arbitration” v. policy establishes “a national Ferrer, 917, 923, 128 552 U.S. 169 L. Ed. 2d S. Ct.
(2008)), decisions, Kostakos, reflect a including Bishop Illinois clauses, judicial of arbitration policy preference for enforcement aside, adopt AAA proceedings especially parties agree when the 48(a). the line: no waiver of arbitra- Rule The rule and our cases draw judicial proceeding tion relates to the presented unless an issue no such issue. subject matter of the arbitration. The defendants raised line, discovery should visions of horrific We hew to the undeterred (gasp!) filing tactics. Even where those tactics include of inter- rogatories.
I respectfully dissent. ILLINOIS, THE Plaintiff-Appellee, PEOPLE OF THE STATE OF v. AVERETT,Defendant-Appellant. WARREN (3rd Division) First District No. 1 — 05—3495 Opinion filed March