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SIXTH DIVISION
January 19, 200l

No. 1-99-3878

Following a mandatory arbitration in this negligence action, the circuit court entered judgment on the arbitration award infavor of defendant Nicole M. Newmann and against plaintiff Rebecca Saldana. On appeal, plaintiff contends the trial courtabused its discretion when it barred her from rejecting the arbitration award.

Plaintiff filed a negligence action, alleging certaininjuries, following a one-car accident in which she was a passenger anddefendant was the driver when the car left the road and ended in a ditch. Ultimately, the trial court ordered that the matterbe presented for mandatory arbitration. An arbitration hearing was scheduled for 8:30 a.m. on July 8, 1999.

On July 8, 1999, an arbitration award was entered in favor of defendant. The award stated that defendant and her attorneyand plaintiff's attorney were present but plaintiff failed to appear. The award was file stamped at 8:52 a.m.

Thereafter, plaintiff filed a notice to reject the arbitration award. In response, defendant filed a motion to strike rejection ofthe award, stating that plaintiff presented no evidence to the arbitrators and failed to participate in the hearing in good faithand in a meaningful manner. Plaintiff replied, asserting that she appeared for the scheduled arbitration hearing after 9:15a.m. Plaintiff included her own affidavit and an affidavit of her father stating that they left their home in Lemont at 7 a.m.to attend the mandatory arbitration hearing scheduled for 8:30 a.m. at 222 North La Salle Street in Chicago. "Due to trafficconditions on the route taken, I-57 to 94-West," they did not arrive until 9:30 a.m.

The trial court entered an order in favor of defendant on October 4, 1999. The order in its entirety states:

"This matter coming on to be heard on Motion of Defendant to strike Rejection ofarbitration award filed by Plaintiff, thecourt being advised ORDERS as follows: 1) Defendant's motion to Strike Rejection of Arbitration Award be and the sameis hereby granted."

The crux of the present appeal concerns the disparate positions advanced by the parties regarding the basis of the trialcourt's order to bar plaintiff's rejection of the arbitration award. Plaintiff submits that the trial court barred herrejection ofthe award because she was late for the arbitration hearing, which had ended before she arrived. Plaintiff, therefore,primarily argues that unintentional tardiness on her part cannot bar her rejection of the award. In contrast, defendantmaintains that the trial court barred rejection because plaintiff's counsel failed to participate in the hearing in good faith andin a meaningful manner. Thus, defendant primarily argues that the determinative issue is whether plaintiff participated inthe hearing in good faith. While each party urges this court to consider herrespective reasoning for the trial court's order,the record, as acknowledged by plaintiff, is silent as to the basis of the trial court's order.

A trial court's decision to bar rejection of an arbitration award will be reversed only if it constitutes an abuse ofdiscretion. Goldman v. Dhillon, 307 Ill. App. 3d 169, 172 (1999) (explaining abuse of discretion as arbitrary or exceeding the boundsof reason).

Supreme Court Rule 91 provides two grounds for barringrejection of an arbitration award. 145 Ill. 2d R. 91. First, a partywaives the right to reject an arbitration award where the party fails "to be present, either in person or by counsel, at anarbitration hearing." 145 Ill. 2d R. 91(a). In the present case, plaintiff's counsel attended the arbitration hearing. Plaintiff'spresence was not required under Rule 91(a) and was not mandated by notice in the present case under Rule 237 (166 Ill. 2dR. 237(b)). Schmidt v. Joseph, 315 Ill. App. 3d 77, 82 (2000). Therefore, thepresencerequirement embodied in Rule 91(a) was satisfied by the presence of plaintiff'scounsel.

Second, a separate basis for barring a party's rejection of an arbitration awardexists when a party fails to participate in an arbitration hearing in good faithand in a meaningful manner. 145 Ill. 2d R. 91(b). Contrary to plaintiff'sassertion on appeal, where, as here the panel of arbitrators did not include afinding in the written award that plaintiff failed to participate in good faith,the circuit court may still bar rejection of the award based on lack of good-faith participation. Goldman, 307 Ill. App. 3d at 172; Hill v. Joseph Behr & Sons, Inc., 293 Ill. App. 3d 814, 817 (1997).

Plaintiff has not included in the record on appeal a report of proceedings or bystander's report of either the arbitrationhearing or the hearing before the trial court on defendant's motion to bar her rejection. Plaintiff states generally that herattorney "participated" but she does not specify how he participated in the arbitration hearing. Plaintiff argues that, withouta transcript of the hearing, the trial court did not have basis to determine whether she had participated in good faith or in ameaningful manner.

Plaintiff depends on West Bend Mutual Insurance Co. v. Herrera, 292 Ill. App. 3d 669, 674 (1997), where this court heldbecause there was no finding of bad faith by the arbitration panel and no transcript from the hearing, the trial court did nothave a basis to determine whether the defendant participated in the hearing in good faith or in a meaningful manner. However, in West Bend, this court noted that the defendant's attorney submitted an affidavit in the trial court, indicating thatat the hearing she made an opening statement, cross-examined the plaintiff, and made a closing argument. West Bend, 292Ill. App. 3d at 674; see also Goldman, 307 Ill. App. 3d at 173-74 (distinguishing West Bend).

In Goldman, this court held that, because the appellant has the burden of presenting a sufficiently complete record onappeal, in the absence of such a record it is presumed that the order entered by the trial court was in conformity with thelaw. Goldman, 307 Ill. App. 3d at 173. Moreover, as here, where the order stated that the court was "advised" when itgranted defendant's motion to bar plaintiff's rejection of the arbitration award, we presume the court heard adequateevidence to support the decision. Goldman, 307 Ill. App. 3d at 173; see also Kable Priniting Co. v. Mount MorrisBookbinders Union Local 65-B, 27 Ill. App. 3d 500, 504 (1975) (presumption that judgment entered after hearing argumentof counsel and being fully advised was based on sufficient evidence to decide the issue before the court).

In the instant case, plaintiff's attorney did not present the trial court with an affidavit attesting to his participation in thearbitration hearing. Defendant asserts the proceeding began at 8:30 a.m., and they waited the requisite 15 minutes forplaintiff to arrive. When plaintiff failed to arrive, plaintiff's attorney simply agreed that the panel of arbitrators would enteran award in favor of defendant. Defendant's assertion that there was no other participation by defendant's attorney issupported by the time stamp of "8:52" evidencing the entry of the written award, which supports a reasonable inference thathere was no meaningful participation.

We also note that plaintiff's attorney could have requested, but apparently did not, that the hearing be continued so plaintiffcould participate in good faith and in a meaningful manner. Moreover, plaintiff did not offer an excuse for failing toattend the hearing until she was "faced with the prospect of being barred from rejecting the award." Martinez v. Gaimari,271 Ill. App. 3d 879, 883 (1995), "Where a party appears but fails to participate in an arbitration hearing, we cannot saythat the trial court's finding that this failure violates Rule 91(b) represents an abuse of discretion simply because the courtdid not have a transcript of the arbitration proceedings. Nothing in the rules limits the trial judge's consideration to ahearing transcript." Goldman, 307 Ill. App. 3d at 174.

Moreover, even if, as plaintiff generally suggests, her counsel "participated" in some way, this still would not preclude thetrial court's decision to bar rejection of the award as a sanction. See Schmidt v. Joseph, 315 Ill. App. 3d 77, 83 (2000). InSchmidt, the plaintiff did not appear at the arbiatration hearing but was represented by counsel, called the defendant as anadverse witness, submitted documents including the plaintiff's medical records and bills, and made a closing argument. Schmidt, 315 Ill. App. 3d at 79. The arbitration panel made no determination that the plaintiff failed to participate in goodfaith, but after the hearing, the trial court barred the plaintiff's rejection of the award based on lack of good-faithparticipation. As in our case, in Schmidt, the reviewing court was not presented in atranscript of the arbitration hearing onthe hearing before the trial court after which it barred the plaintiff's rejection of the award. Schmidt, 315 Ill. App. 3d at 84. The plaintiff contended, as here, that the trial court had no basis for finding lack of good-faith participation. Although thiscourt noted that plaintiff was present at the arbitration through counsel and her failure to appear was reasonable and theresult of extenuating circumstances, it found that a trial court need not find intentional obstruction of the arbitration processin order to find bad-faith participation because the purposes of Rule 91(b) are defeated as well when a party's conduct is theresult of inept preparation. Schmidt, 315 Ill. App. 3d at 83. Because no transcript of the arbitrationhearing was submitted,this court held it could not determine whether the plaintiff's counsel presented a prima facie case or subjected the case tothe adversarial testing that is necessary to maintain the integrity of the arbitration process and affirmed the trial court'sdecision to bar the plaintiff's rejection of the arbitration award. Schmidt, 315 Ill. App. 3d at 84-86.

The assertions and affidavits of plaintiff and her father were before the trial court and the order from which plaintiff appealsstated the court was "advised" when it granted defendant's motion to bar plaintiff's rejection of the award. We can discernno abuse of discretion on the record before us. See Schmidt, 315 Ill. App. 3d at 86; Goldman, 307 Ill. App. 3d at 173.

Lastly, we note that defendant filed a motion to strikeportions of plaintiff's reply brief and we took the motion with thecase. Given our disposition in this appeal, it is not necessary to rule on this motion.

Accordingly, we affirm the judgment of the circuit court.

O'Brien and Gallagher, JJ., concur.