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No. 1-04-0222

Defendants David Pineda and Baslisa Pineda appeal from a trial court order barring themfrom rejecting an arbitration award and entering judgment in favor of plaintiff Neal J. Anderson inthe amount of $30,000. On appeal, defendants contend that the trial court erred in barring themfrom rejecting the arbitration award because debarment is an improper sanction for a pre-arbitration discovery violation and the sanction is unduly harsh. For the reasons that follow, weaffirm.

On August 20, 2002, plaintiff filed a complaint to recover for injuries suffered in a trafficaccident with a car driven by defendant David Pineda. David Pineda's mother, Baslisa Pineda, theowner of the car David was driving, was also named as a defendant. Plaintiff alleged thatdefendants negligently caused the accident. Defendants answered, denying negligence.

Plaintiff served defendants with written discovery requests, including interrogatories and arequest to produce documents. When defendants did not comply with the discovery requests,plaintiff moved to compel defendants to answer the requests. The trial court granted the motionon July 10, 2003, advising defendants that failure to comply with the order by July 24, 2003,would result in defendants being barred from testifying and presenting evidence at trial orarbitration. On July 24, defendants returned unsigned answers to plaintiff's interrogatories but didnot produce the requested documents.

On July 31, 2003, plaintiff filed a petition for a rule to show cause to be issued againstdefendants because they had given inadequate, unresponsive, and unsigned answers to theinterrogatories and had not responded to plaintiff's request for production of documents. OnAugust 12, 2003, after a hearing on plaintiff's petition, the trial court granted plaintiff's petition inpart, barring defendants from testifying and presenting evidence at trial or arbitration.

The case proceeded to mandatory arbitration on October 7, 2003. Although there is notranscript of the arbitration hearing in the record, both parties agree that at the hearingdefendants' participation was limited to presenting opening and closing arguments and cross-examining plaintiff. The arbitration panel found in favor of plaintiff in the amount of $30,000 anddid not make a finding of bad-faith participation by either party.

Defendants filed a notice of rejection of the arbitration award on October 20, 2003. Plaintiff then filed a motion to debar defendants from rejecting the award. Plaintiff cited Glover v.Barbosa, 344 Ill. App. 3d 58 (2003), in alleging that defendants' bad faith warranted sanctionsunder Supreme Court Rule 91(b) (145 Ill. 2d R. 91(b)) because:

"At no time did the Defendants' [sic] seek to move toremove the sanctions imposed by [the order preventing them fromtestifying or presenting evidence at trial or arbitration].

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[At the arbitration hearing,] [t]he Defendants offered noevidence and did not testify.

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Defendants' continued failure to comply with discoveryorders demonstrates an unwillingness to participate in thearbitration process and this litigation in good faith."

Defendants responded by admitting negligence in failing to yield the right of way. Theyargued that because they had admitted negligence, there was no need for them to testify at thehearing, so their failure to do so did not indicate a lack of good faith or meaningful participation. Under such circumstances, they argued, Rule 91(b) sanctions were not warranted.

In its reply to defendants' response, plaintiff pointed out that defendants never attemptedto remove the sanctions imposed on them by the July 10 or August 12 order.

The trial court granted plaintiff's motion, on January 12, 2004, ordering:

"Defendants are debarred from rejecting the award under Rule91(b) for the following[:]

a. The Defendants have failed to participate in thearbitration process in a good faith manner, namely repeat failures tocomply with discovery; and

b. The Defendants have failed to explain the failures by wayof affidavit and/or response to plaintiff's motion."

Judgment was entered in favor of plaintiff on the arbitration award.

Defendants contend that the trial court erred in barring them from rejecting the arbitrationaward based on their conduct before, rather than during, the arbitration hearing.

Parties to a mandatory arbitration have a presumptive right to reject the arbitration awardunless they are subject to sanctions barring rejection. Knight v. Guzman, 291 Ill. App. 3d 378,380 (1997). Supreme Court Rule 91(b) requires that parties to an arbitration hearing participatein good faith and in a meaningful manner and allows a trial court to impose sanctions, includingbarring the offending party from rejecting the award, if a party fails to do so. 145 Ill. 2d R. 91(b). This court will not disturb sanctions imposed by a trial court under Supreme Court Rule 91(b)unless we find that the trial court has abused its discretion. State Farm Insurance Co. v. Gebbie,288 Ill. App. 3d 640, 644 (1997).

In arguing their case, defendants rely on Amro v. Bellamy, 337 Ill. App. 3d 369 (2003). In response, plaintiff relies on Glover v. Barbosa, 344 Ill. App. 3d 58 (2003). Because, in thesetwo cases, this court has taken two contrary approaches to resolving the issue at bar, our analysisbegins with an examination of each and a decision as to which case to follow.

In Amro, defendant was barred from testifying after missing two discovery deadlines. Defendant did nothing to modify or vacate the order barring him from testifying, nor did hecomply with plaintiff's discovery requests. At the mandatory arbitration hearing, defendantpresented opening and closing statements and cross-examined plaintiff but did not present anyevidence or testimony. The trial court imposed sanctions debarring defendant from rejecting thearbitration award "because of sanctions for failure to comply with discovery." Amro, 337 Ill.App. 3d at 371.

On appeal in Amro, this court held that the trial court had abused its discretion in barringrejection. In making its decision, the court referred to the facts that the arbitration panel did notfind, and the record did not otherwise indicate, that defendant had participated in the hearing inbad faith. Further, the court held that the trial court erred in imposing sanctions because thelanguage of the trial court's debarment order indicated that the trial court "[c]learly *** debarreddefendant from rejecting the arbitration award on the basis of his conduct before the hearing,which it cannot do [under Rule 91(b)]." (Emphasis in original.) Amro, 337 Ill. App. 3d at 372.

In Glover, after failing to comply with discovery, defendant was barred from presentingevidence and testimony at trial or arbitration. During the six months between the date defendantwas sanctioned and the date of the arbitration hearing, she made no attempt to "comply withdiscovery or modify or vacate the *** order to enable her to participate fully at arbitration ortrial." Glover, 344 Ill. App. 3d at 62. At the mandatory arbitration hearing, defendant presentedopening and closing arguments and cross-examined plaintiff. The arbitration panel in Gloverreturned a verdict for the plaintiff but did not include a finding of bad faith on the part ofdefendant in its award. Plaintiff moved to bar defendant from rejecting the award. Defendantclaimed that her conduct at arbitration was in good faith in light of the fact that she was barredfrom presenting evidence and testifying. The trial court granted plaintiff's motion, entering ajudgment on the award.

Despite defendant's argument that the court abused its discretion in imposing Rule 91(b)sanctions for conduct outside of the arbitration hearing, this court affirmed the imposition ofsanctions in Glover. The court found "defendant's reasoning subverts the mandatory arbitrationsystem" (Glover, 344 Ill. App. 3d at 62) because "defendant's predicament is of her own making"(Glover, 344 Ill. App. 3d at 61). During the six months between the imposition of sanctions andthe hearing, her "ability to ensure good-faith compliance at the hearing was within her control atall times." Glover, 344 Ill. App. 3d at 63. Because of her inaction, defendant was unable toparticipate meaningfully at the hearing and therefore sanctions barring her from rejecting thearbitration award were proper. Glover, 344 Ill. App. 3d at 62.

We find the reasoning of Glover more persuasive than that of Amro. In determiningwhether Rule 91(b) sanctions are appropriate, failing to consider violations that occurred outsideof, but directly impacted, the hearing "undermine[s] the spirit and purpose of Rule 91(b) and themandatory arbitration system as a whole." Glover, 344 Ill. App. 3d at 62. We must be consciousof the fact that a litigant who fails to modify, vacate, or comply with sanctions imposed due to adiscovery violation that occurs outside of the arbitration hearing may be incapable of participatingin the arbitration in a meaningful manner.

In this case, the trial court properly determined that defendants did not participate in thearbitration in a meaningful manner. Defendants were barred from testifying and presentingevidence at trial or arbitration on August 12, 2003. The arbitration hearing was held on October7, 2003. Defendants had almost two months to comply with discovery or to attempt to vacate ormodify the August 12 order. Defendants chose not to act. As a result, they were not permittedto present evidence at the arbitration hearing, which amounted to a failure to participate in goodfaith. Because defendants had the ability to take steps to ensure that they could participatemeaningfully in the hearing, but refused to take these steps, Rule 91(b) sanctions, barring themfrom rejecting the arbitration award, are proper.

Defendants' argument that they would not have testified even if permitted because theyhad admitted liability is unpersuasive. In their answer to plaintiff's complaint, defendants deniedliability. They did not admit liability until after the arbitration hearing, in response to plaintiff'smotion for sanctions. Under these circumstances, the trial court certainly did not imposesanctions for defendants' "trial strategy," as defendant contends. Instead, because defendants'refusal to comply with discovery resulted in their inability to meaningfully participate inarbitration, the trial court acted within its discretion in sanctioning defendants' contempt anddisregard for the arbitration process.

Defendants next contend that sanctions barring them from rejecting the arbitration awardare unduly harsh.

We will not disturb sanctions imposed by a trial court under Rule 91(b) absent a showingof an abuse of discretion. Gebbie, 288 Ill. App. 3d at 644. A trial court abuses its discretion byacting in an arbitrary manner or exceeding the bounds of reason in imposing sanctions. Goldmanv. Dhillon, 307 Ill. App. 3d 169, 172 (1999).

We find that, because defendants deliberately and blatantly disregarded the order to submitto discovery, leading to their failure to participate meaningfully in arbitration, the trial court wasnot unduly harsh in barring defendants from rejecting the arbitration award.

For the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.

Greiman, J. and Theis, J., concur.