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FIRST DIVISION
March 29, 2004

JUSTICE McBRIDE delivered the opinion of the court:

This appeal arises out of an automobile collision betweenplaintiff, Patricia Ruback, and defendant Emmet Doss, now deceased. Defendant Katherine Doss was Emmet's wife and was the owner of thevehicle driven by Emmet Doss during the collision with plaintiff. Katherine Doss was not in the vehicle driven by her husband at thetime of the accident. After Emmet's death, Katherine Doss wasappointed special administrator of his estate.

On June 14, 1999, plaintiff filed a two-count negligencecomplaint against Emmet Doss (count I) and Katherine Doss, under aprincipal-agent theory, (count II) alleging personal injuries as aresult of the automobile collision between plaintiff and Emmet Dosson July 7, 1997. The case was originally filed in the lawdivision, was transferred to the first municipal district, and wasthen submitted to mandatory arbitration. Before the arbitrationhearing, plaintiff subpoenaed two occurrence witnesses at theaddresses noted on the police report documenting the collision. These witnesses were Deitrich A. Norwood and Dondi Montgomery. Neither Norwood nor Montgomery appeared at the arbitration hearing. The record shows that plaintiff and her husband testified at thehearing and that plaintiff received an award of $30,000 againstdefendants. The arbitration award did not include a finding thatplaintiff had acted in bad faith. Both plaintiff and defendantsrejected the award and requested a trial.

On July 23, 2002, defendants filed a motion to bar plaintifffrom testifying or producing any evidence at trial and to enterjudgment for the defendants as a sanction under Supreme Court Rule91(b) for plaintiff's failure to participate in good faith at thearbitration hearing. 145 Ill. 2d R.91(b). The basis of the motionto bar was that plaintiff and her husband were permitted to testifyat the arbitration hearing in violation of the Dead-Man's Act, setforth in section 8-201 of the Illinois Code of Civil Procedure. 735 ILCS 5/8-201 (West 2000). Defendants argued that because plaintiff failed to produce any competent, independent, ordisinterested witness to support her claim, she participated in badfaith at the arbitration hearing. The motion to bar did notprovide a copy of the transcript of the arbitration hearing;however, on August 27, 2002, the trial court granted defendants'motion and barred plaintiff from presenting any evidence ortestimony at trial pursuant to Supreme Court Rule 91(b). 145 Ill.2d R.91(b).

On August 30, 2002, defendants moved for summary judgment onthe ground that plaintiff was barred and could not produce anyevidence or testimony at trial and, therefore, no genuine issue ofmaterial fact existed. The trial court granted defendants' summaryjudgment motion on October 3, 2002. On the same day, plaintiff's motion to reconsider was denied.

Plaintiff's primary contention on appeal is that the trialcourt abused its discretion when it determined plaintiff'sparticipation in the arbitration hearing amounted to bad faith, andthereafter erroneously granted the motion to bar and defendants'motion for summary judgment.

Plaintiff claims that she participated in good faith at thearbitration hearing by attempting to procure two independentwitnesses; by preparing and serving an evidence package underSupreme Court Rule 90(c)(166 Ill. 2d R. 90(c)), which consisted ofdocumentary evidence related to her injuries; and by presenting hertestimony and that of her husband. Plaintiff also contends thatthe trial court erred by finding her testimony was barred by theDead-Man's Act, defendants should have objected to the testimony atthe hearing, and the presentation of her case without independentwitnesses did not amount to bad faith.

On appeal defendants' response is essentially the sameargument they made to the trial court; plaintiff participated inbad faith by testifying at the arbitration hearing in violation ofthe Dead-Man's Act and by failing to produce the testimony of theindependent witnesses subpoenaed. As noted above, in the absenceof a bad-faith finding by the arbitrators and without the benefitof any transcript from the arbitration hearing, the trial courtfound that plaintiff did not participate in the arbitration hearingin good faith. The trial court's sanction order debarringplaintiff from presenting any evidence at trial was based uponSupreme Court Rule 91(b).

Supreme Court Rule 91(b) provides, in relevant part:

"All parties to the arbitration hearingmust participate in the hearing in good faithand in a meaningful manner. If a panel ofarbitrators unanimously finds that a party hasfailed to participate in a hearing in goodfaith and in a meaningful manner, the panel'sfinding and factual basis therefor shall bestated on the award. Such award shall beprima facie evidence that the party failed toparticipate in the arbitration hearing in goodfaith and in a meaningful manner and a court,when presented with a petition for sanctionsor remedy therefor, may order sanctions asprovided in Rule 219(c) ***." 145 Ill. 2d R.91(b).

Sanctions imposed by a trial court under Rule 91 "will bereversed only where the court's decision represents an abuse ofdiscretion." State Farm Insurance Co. v. Harmon, 335 Ill. App. 3d687, 690, 781 N.E.2d 335 (2002). A party must "participate in anarbitration hearing in good faith by subjecting the case to thetype of adversarial testing expected at a trial." Harmon, 335 Ill.App. 3d at 690. A party acts in bad faith "where its actionsamount to a deliberate and pronounced disregard for the rules andthe court." Harmon, 335 Ill. App. 3d at 690. "Bad faith mayconsist of inept preparation or intentional disregard for theprocess." Harmon, 335 Ill. App. 3d at 690. Further, an abuse ofdiscretion means a decision that is arbitrary or exceeds the boundsof reason. State Farm Insurance Co. v. Rodrigues, 324 Ill. App. 3d736, 740, 756 N.E.2d 359 (2001).

The Dead-Man's Act provides, in relevant part:

"In the trial of any action in which anyparty sues or defends as the representative ofa deceased person ***, no adverse party orperson directly interested in the action shallbe allowed to testify on his or her own behalfto any conversation with the deceased *** toany event which took place in the presence ofthe deceased ***." 735 ILCS 5/8-201 (West2000).

The purposes of the Dead-Man's Act are: "[T]o protect decedents'estates from fraudulent claims and to equalize the position of theparties in regard to the giving of testimony. [Citation.] The Actbars only that evidence which defendant could have refuted." Smithv. Haran, 273 Ill. App. 3d 866, 875, 652 N.E.2d 1167 (1995).

After the briefs were filed in this case, Danzot v. Zabilka,342 Ill. App. 3d 493, 795 N.E.2d 881 (2003), was decided whichinvolves very similar issues and which we conclude disposes of theissues in this case.

Danzot involved a negligence action where the plaintiff filedsuit against Johnnie Nunn for alleged injuries suffered as a resultof an automobile collision between the plaintiff and Nunn. At thetime the action was filed, Nunn was deceased and the defendant wasappointed special administrator of his estate. The trial courtordered the case to arbitration. As part of the plaintiff'sdiscovery responses, she identified potential witnesses, includingtwo disinterested witnesses who had purportedly observed theaccident.

At the arbitration hearing, the plaintiff and her husbandsought to testify over an objection raised by the defendant thatthe testimony was prohibited by the Dead-Man's Act. Thearbitration panel overruled the defendant's objection and permittedthe plaintiff and her husband to testify. Relying on thattestimony, in addition to the evidence in her Rule 90(c) package,the plaintiff chose not to call the other witnesses. Thearbitrators entered an award in favor of the plaintiff in theamount of $30,000. The arbitration award did not contain a findingthat the plaintiff had participated in the hearing in bad faith.

The defendant filed a notice rejecting the award and a motionfor sanctions under Rule 91(b) arguing the plaintiff participatedin the arbitration hearing in bad faith. The ground for thedefendant's motion was that the plaintiff failed to present thetestimony of disinterested witnesses in violation of the Dead-Man'sAct. The trial court granted the defendant's motion and barred theplaintiff from presenting evidence or testifying at trial pursuantto Rule 91(b). The defendant filed a motion for summary judgmentclaiming that no material issue of fact remained because theplaintiff was unable to present any evidence supporting her claim,which was thereafter granted.

On appeal the plaintiff argued that the trial court erred bybarring the plaintiff from testifying or presenting any evidence attrial and then by granting summary judgment in the defendant'sfavor based on the sanction.

The appellate court found the trial court's imposition ofsanctions was arbitrary and an abuse of discretion because theplaintiff had breached no court rule or order. Danzot, 342 Ill.App. 3d at 497-98. To the contrary, it found that the plaintiffhad complied with the court's discovery order and pretrialprocedure rules by timely submitting her responses tointerrogatories and the Rule 90(c) evidence package. Danzot, 342Ill. App. 3d at 497-98. The court further noted that, at the timeof the arbitration hearing, the trial court had not made anevidentiary ruling regarding the Dead-Man's Act or otherwise issuedan order restricting the plaintiff from presenting her owntestimony or that of her husband at the arbitration proceedings. Danzot, 342 Ill. App. 3d at 497-98.

The court also observed that the purpose of the Dead-Man's Actis to bar " 'only that evidence which the defendant could haverefuted.' (Emphasis added.) [Citation.]" Danzot, 342 Ill. App.3d at 498. It recognized that the Dead-Man's Act does not "whollyprohibit the testimony of the person who interacted with thedecedent, or that person's spouse, but rather prevents them fromtestifying as to any conversation with the decedent or to any'event' which took place in the decedents' presence. [Citation.]" Danzot, 342 Ill. App. 3d at 498. The court further relied upon thedecision in Rerack v. Lally, 241 Ill. App. 3d 692, 695, 609 N.E.2d727 (1992), which also involved the application of the Dead-Man'sAct in a negligence action arising from an auto collision.

In Rerack, the court found that, despite the fact thedefendant was deceased, the Dead-Man's Act did not bar theplaintiff from testifying to the following facts:

"[T]he overall mechanical condition ofplaintiff's automobile and, specifically, thefunctioning of its brake light; the weatherconditions at the time of the accident; thatplaintiff's vehicle was stopped for twominutes; that plaintiff's foot was on thebrake pedal of his car continuously; thatplaintiff had heard no sound prior to theaccident's impact; and that plaintiff observeddamage to the rear of his vehicle the dayafter the occurrence." Rerack, 241 Ill. App.3d at 695.

Danzot, 342 Ill. App. 3d at 498-99. Based on these factors inRerack, the Danzot court held the Dead-Man's Act would not bar theplaintiff and her husband from testifying to similar facts andwould not require a complete prohibition of their testimony attrial. Danzot, 342 Ill. App. 3d at 499. It further concluded thatthe plaintiff met her burden of subjecting the case to the type ofadversarial testing expected at trial by submitting a Rule 90(c)evidence package and appearing at the arbitration hearing. Theappellate court concluded that the trial court's order debarringthe plaintiff from presenting evidence was an abuse of discretionand reversed the summary judgment order based on the erroneoussanction. Danzot, 342 Ill. App. 3d at 499-500.

In the instant case, the arbitrators permitted plaintiff andher husband to testify about the accident but, because we do nothave a transcript of the arbitration hearing, we are unable todetermine the exact testimony given by plaintiff and her husband. Like Danzot, though, there was no prior court order barringplaintiff or her husband from testifying to facts regarding theoccurrence. However, Danzot and Rerack establish that bothplaintiff and her husband could have testified to facts such as theoverall condition of plaintiff's car, the functioning of itsequipment, the weather conditions at the time of the accident, andother evidence that defendant could not have refuted. Danzot, 342Ill. App. 3d at 498-499; Rerack, 241 Ill. App. 3d at 695.

The testimony of plaintiff and her husband, the submission ofplaintiff's Rule 90(c) package, and plaintiff's appearance at thearbitration hearing establish that plaintiff met the burden ofadversarial testing expected at trial.

The plaintiff in Danzot was not required to present thetestimony of the disinterested witnesses. Yet, in the instant caseplaintiff subpoenaed the witnesses for the arbitration hearing butthrough no fault of her own, the witnesses failed to appear.

Further, in this case, defendants may well have waived anyobjection to plaintiff's testimony under the Dead-Man's Act. Aspointed out by plaintiff, the "privilege of invoking the Dead-Man'sAct belonged to [the representative of the deceased] to assert orwaive." Wells v. Enloe, 282 Ill. App. 3d 586, 596, 669 N.E.2d 368(1996); Moran v. Erickson, 297 Ill. App. 3d 342, 361, 696 N.E.2d780 (1998). Here, because the transcript of the arbitrationhearing is not part of the record, it is unclear whether defendantsproperly objected to plaintiff's testimony at the arbitrationhearing on the basis of the Dead-Man's Act. Thus, we cannotconclude that defendants properly raised the Dead-Man's Act at thearbitration hearing.

We find that plaintiff participated in good faith at thehearing by attempting to procure the testimony of the twooccurrence witnesses prior to the arbitration hearing. She did soby subpoenaing the witnesses at their addresses listed on thepolice report. The affidavit of the special process server showsthat Dondi Montgomery was served the subpoena on June 25, 2002, byleaving the subpoena with a member of the household over the age of13. The special process server was unable to serve DeitrichNorwood because he did not reside at the address shown on thepolice report.

We find no authority, and defendants offer none, that requiredplaintiff to ensure the occurrence witnesses' compliance with theissued subpoenas. We also find no authority that supportssanctioning a plaintiff because the witnesses failed to respond toa subpoena under these circumstances. As a result, we concludethat plaintiff's inability to secure the attendance of theoccurrence witnesses in this case did not amount to bad faith orsanctionable conduct.

Because of the evidence plaintiff did present in this case, weconclude that she met her burden of subjecting the case to the typeof adversarial testing required at trial and did not have topresent the testimony of Norwood or Montgomery. If defendantsbelieved the testimony of these witnesses was essential at thearbitration hearing, they could have secured it through their owndiligence because the two occurrence witnesses were listed on"Plaintiff's Answers to Interrogatories and Supreme Court Rule[s]213(f) and (g) Interrogatories" (177 Ill. 2d Rs.213(f),(g)). Danzot, 342 Ill. App. 3d at 498.

We also note that a trial court's finding of bad-faithparticipation without the benefit of a transcript of thearbitration proceedings and without a prior finding of bad faith bythe arbitration panel has been discouraged. See West Bend MutualInsurance Co. v. Herrera, 292 Ill. App. 3d 669, 674, 686 N.E.2d 645(1997).

Defendants also argue that plaintiff participated in bad faithat the arbitration hearing because of inept preparation. Insupport of this argument, they rely upon language in Employer'sConsortium Inc. v. Aaron, 298 Ill. App. 3d 187, 191 (1998), whichstates that, "[a] trial court need not find intentional obstructionof the arbitration proceeding" as evidence of bad faith. Aaronalso holds, "[t]he purposes of Rule 91(b) are defeated whether aparty's conduct is the result of inept preparation or intentionaldisregard for the process." Aaron, 298 Ill. App. 3d at 191.

Defendants first point out that plaintiff could havesubpoenaed the two occurrence witnesses for a discovery depositionto determine what their testimony would be. According todefendants, had she done so plaintiff would have discovered thatone witness no longer lived at the address noted on the policereport. Having this information, defendants claim plaintiff couldhave hired a private investigator or skip tracer to locate thewitness instead of waiting until the eve of the arbitration hearingwhere there would be little recourse if the witness had moved.

In addition, defendants claim that plaintiff could havesecured the testimony of the other witness via affidavit ordeposition pursuant to Supreme Court Rule 90(c)(5) (166 Ill. 2d R.90(c)(5)). If the witness did not appear, plaintiff could havepetitioned the trial court for a rule to show cause or obtained abench warrant to secure the witness's presence. Instead,defendants contend plaintiff's failure to take these measuresamounted to bad faith.

Despite the fact that defendants characterize plaintiff's preparation regarding subpoenaing the occurrence witnesses asinept, defendants fail to cite any relevant authority supportingthe conclusion that such conduct amounted to bad-faithparticipation. Therefore, we find this argument waived underSupreme Court Rule 341(e)(7), which requires a party to providecitations to relevant authority supporting arguments advanced onappeal. 177 Ill. 2d R. 341(e)(7); McCarthy v. Denkovski, 301 Ill.App. 3d 69, 74, 703 N.E.2d 408 (1998).

Defendants also claim that, should this matter be remanded, they would be prejudiced because plaintiff would attempt to locatethe two occurrence witnesses and would have them testify. Sincediscovery will be closed, defendants claim that they will have noopportunity to learn the witnesses' testimony prior to trial. Defendants argue that, had the witnesses been present at thearbitration hearing, defendants would have been able to learn theirtestimony. In addition, defendants, without explanation, assertthe fact that plaintiff prevailed at arbitration in the amount of$30,000 also prejudiced them.

In support of the arguments, defendants rely solely upon StateFarm Insurance Co. v. Jacquez, 322 Ill. App. 3d 652, 656-57, 749N.E.2d 462 (2001), for the proposition that the "issue of whethera party is prejudiced by the absence of witnesses has beenconsidered by the appellate court." Jacquez involved an orderwhere a specific finding was made that the plaintiff had not beenprejudiced. Jacquez, 322 Ill. App. 3d at 656. Therefore, Jacquezis not helpful to the prejudice arguments raised by defendantshere. As we noted above, arguments not supported by relevantauthority are waived. McCarthy v. Denkovski, 301 Ill. App. 3d at74.

Waiver aside, the argument that defendants had no opportunityto learn the witnesses' testimony prior to trial is not persuasive. As noted above, the two occurrence witnesses were listed onplaintiff's answers to interrogatories and Supreme Court Rules213(f) and (g) interrogatories (177 Ill. 2d Rs.213(f),(g)).Defendants had an opportunity to depose these witnesses prior tothe arbitration hearing.

Further, we fail to understand how the fact that plaintiffprevailed at arbitration in the amount of $30,000 prejudiceddefendants. The record reveals that defendants could have, anddid, reject the arbitration award.

From the record, we cannot say that plaintiff's conductamounted to bad faith under Supreme Court Rule 91(b), ineptpreparation, or a deliberate and pronounced disregard for the rulesof the court. As a result, we conclude that the trial court abusedits discretion by granting defendants' motion to bar and byentering summary judgment in their favor.

The orders entered by the trial court are reversed and thematter is remanded for further proceedings consistent with thisopinion.

Reversed and remanded.

O'MALLEY, P.J., and McNULTY, J., concur.