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September 25, 2001

The defendant, Tonya Gleash, appeals from the September 6,2000, order of the circuit court of Du Page County imposing sanctions on her in the amount of $4,350, pursuant to Supreme CourtRule 91(b) (145 Ill. 2d R. 91(b)). On appeal, Gleash contends thatthe trial court's award of sanctions was an abuse of discretion. We affirm as modified.

The facts relevant to the disposition of this appeal are asfollows. On August 27, 1999, the plaintiff, Melissa Smith, filed a complaint against the defendants, Gleash and Peggy D. Smith,alleging that she was injured in an August 28, 1997, trafficaccident. On December 2, 1999, the trial court assigned the caseto mandatory arbitration and set the arbitration hearing for March6, 2000, at 8:30 a.m. On December 2, 1999, the trial court alsodefaulted Gleash, as she had not yet appeared or answered theplaintiff's complaint.

Subsequently, the law firm of Meade, Engleberg, & Associates(Meade, Engleberg) filed an appearance on Gleash's behalf. OnDecember 16, 1999, Gleash moved to vacate the default order againsther. On February 9, 2000, the trial court granted Gleash's motionand rescheduled the arbitration hearing for April 11, 2000, at 9a.m. Gleash subsequently filed a motion to be excused from thearbitration or, in the alternative, to testify at the arbitrationhearing via telephone. On March 7, 2000, the trial court grantedGleash's motion, allowing her to testify via telephone.

On April 11, 2000, neither Gleash nor Meade, Engleberg waspresent when the arbitration hearing started. An attorney fromMeade, Engleberg eventually appeared on Gleash's behalf at 10:15a.m., when the arbitrators were already deliberating. Gleash neverappeared or telephoned the arbitration center. Following theirdeliberations, the arbitrators entered an award against Gleash inthe amount of $3,500 plus costs. In addition, the panel ofarbitrators unanimously found that Gleash had failed to participatein the arbitration hearing in good faith, as required by SupremeCourt Rule 91(b). The arbitrators' award indicated that Gleash'sfailure to participate in good faith was based on her failure toappear.

Gleash subsequently filed a motion to reject the award andrequested that the matter be set for trial. On May 12, the trialcourt struck the motion and entered judgment on the award in theamount of $3,500 plus costs. On May 31, 2000, Gleash filed amotion to vacate the judgment. In her motion, Gleash argued thatextenuating circumstances prevented her from participating in thehearing. In support of her motion, Gleash attached affidavits fromherself and Roselyn Pickett, an attorney with Meade, Engelberg. Inher affidavit, Gleash stated that she failed to call thearbitration center because she believed that the hearing started at11 a.m. In her affidavit, Pickett stated that she arrived late forthe hearing because her car would not start. On June 8, 2000, thecourt denied the motion.

On July 7, 2000, the plaintiff filed a petition seekingsanctions of $4,350 in attorney fees against Gleash, pursuant toIllinois Supreme Court Rule 91(b). In her petition, the plaintiffalleged that Gleash had failed to participate in the hearing ingood faith. The plaintiff submitted an affidavit from Jim Pappas,her attorney, attesting to the fees she incurred in the prosecutionof the instant case. Pappas stated that he performed the followingservices at a standard rate of $150 per hour and a rate $200 perhour in court:

Description of Service Hours

On September 6, 2000, the trial court entered sanctions againstGleash for the full amount requested. Gleash filed a timely noticeof appeal.

The sole issue on appeal is whether the trial court abused itsdiscretion in awarding attorney fees as sanctions pursuant toSupreme Court Rule 91(b) (145 Ill. 2d R. 91(b)). Supreme CourtRule 91(b) dictates that all parties to an arbitration hearing mustparticipate in good faith. The rule provides:

"(b) Good Faith Participation. All parties to thearbitration hearing must participate in the hearing in goodfaith and in a meaningful manner. If a panel of arbitratorsunanimously finds that a party has failed to participate inthe hearing in good faith and in a meaningful manner, thepanel's finding and factual basis therefor shall be stated onthe award. Such award shall be prima facie evidence that theparty failed to participate in the arbitration hearing in goodfaith and in a meaningful manner and a court, when presentedwith a petition for sanctions or remedy therefor, may ordersanctions as provided in Rule 219(c), including, but notlimited to, an order debarring that party from rejecting theaward, and costs and attorney fees incurred for thearbitration hearing and in the prosecution of the petition forsanctions ***." 145 Ill. 2d R. 91 (b).

It is essential to the integrity of the mandatory arbitrationprocess that the parties proceed at the arbitration hearing in goodfaith and subject their claims to the sort of adversarial testingthat would be expected at trial. Employer's Consortium, Inc. v.Aaron, 298 Ill. App. 3d 187, 191 (1998). Arbitration is not to beconsidered simply a hurdle to cross on the way to trial. Employer's Consortium, Inc., 298 Ill. App. 3d at 189. SupremeCourt Rule 91(b) (145 Ill. 2d R. 91(b)) requires the presence ofthe party or attorney and good faith and meaningful participationin the arbitration hearing. Martinez v. Gaimari, 271 Ill. App. 3d879, 882 (1995).

When the trial court finds that a party failed to participatein the arbitration hearing in good faith, it may in its discretionimpose sanctions. West Bend Mutual Insurance Co. v. Herrera, 292Ill. App. 3d 669, 674 (1997). When the arbitrators unanimouslyfind that a party failed to participate in good faith, a court willtreat their finding as prima facie evidence of the party's failureto participate. Goldman v. Dhillon, 307 Ill. App. 3d 169, 172(1999). The party subject to Rule 91(b) sanctions has the burdenof presenting evidence to rebut the prima facie evidence. Eichlerv. Record Copy Services, 318 Ill. App. 3d 790, 792-93 (2000).

A reviewing court will not reverse a trial court's impositionof sanctions under Rule 91(b), absent an abuse of discretion. Goldman, 307 Ill. App. 3d at 172. Such a finding will not bedeemed an abuse of discretion unless it is arbitrary or exceeds thebounds of reason. Eichler, 318 Ill. App. 3d at 792.

In their briefs, both parties devote much time to discussingthe applicability of Rule 91(a). However, we do not believe thatRule 91(a) is applicable in the instant case. Rule 91(a) applieswhen both the party and the party's attorney fail to appear at thearbitration. Gore v. Martino, 312 Ill. App. 3d 701, 704 (2000). Although Gleash's attorney arrived late, she nevertheless appearedbefore the arbitration concluded. Gore, 312 Ill. App. 3d at 704. Moreover, we note that the arbitrators did not find that Gleashfailed to appear under Rule 91(a) but instead found that she failedto participate in good faith under Rule 91(b). We thereforeproceed in addressing the issues under Rule 91(b).

In the instant case, the arbitrators made a unanimous findingthat Gleash failed to participate in the hearing in good faith.Based upon their finding, the trial court found that Gleash failedto participate in good faith. On appeal, Gleash does not disputethe trial court's finding. Accordingly, we find that it was properfor the trial court to award attorney fees as sanctions pursuant toRule 91(b).

Nonetheless, Gleash argues that Rule 91(b) limits the award ofsanctions to only those attorney fees incurred in participating inthe arbitration hearing itself or in preparing for the arbitrationhearing. Gleash argues that the majority of the fees awarded bythe trial court were not incurred in participating in thearbitration hearing or prosecuting the petition for sanctions. Rather, she contends the plaintiff incurred many of these fees fromthe initial pleadings and discovery. Gleash argues that theplaintiff would have incurred most of the fees even absent herfailure to participate in the arbitration hearing. She also notesthat the trial court imposed fees that the plaintiff incurred inopposing Gleash's motions to reject the arbitration award andvacate the judgment. Gleash argues that such attorney fees may notbe recovered as sanctions under Rule 91(b).

The plain language of Rule 91(b) does not limit the trialcourt to awarding as sanctions only those attorney fees incurred inpreparing for and participating in the arbitration. Instead, asnoted above, Rule 91(b) provides that the trial court may awardthose sanctions "provided in Rule 219(c), including, but notlimited to, an order debarring that party from rejecting the award,and costs and attorney fees incurred for the arbitration hearingand in the prosecution of the petition for sanctions." 145 Ill. 2dR. 91(b). Rule 219(c) provides that the trial court may award assanctions the "reasonable expenses incurred as a result of the[offending party's] misconduct, including a reasonable attorneyfee." 166 Ill. 2d R. 219(c).

Generally, parties are responsible for paying their ownattorney fees. Abreu v. Unica Industries Sales, Inc., 224 Ill.App. 3d 439, 452 (1991). However, pursuant to Rule 219(c), thetrial court may award attorney fees as sanctions when a party'smisconduct has caused another party to incur fees. Dyduch v.Crystal Green Corp., 221 Ill. App. 3d 474, 480 (1991). The onlyrestriction imposed by Rule 219(c) is that the award of attorneyfees must be related to and be the result of the specificmisconduct. Harnett v. Stack, 241 Ill. App. 3d 157, 175 (1993);see also Dyduch, 221 Ill. App. 3d at 480. In addition to the costsand attorney fees incurred for the arbitration hearing and in theprosecution of the petition for sanctions, Rule 91(b) permits thetrial to award reasonable attorney fees incurred as a result ofGleash's misconduct.

Gleash's misconduct in this case was her failure toparticipate in the arbitration hearing in good faith. Therefore,the trial court could only award reasonable attorney fees relatingto Gleash's failure to participate in the arbitration hearing. Webelieve that the attorney fees incurred by the plaintiff inpreparing for the arbitration hearing, participating in thearbitration hearing, in prosecuting the petition for sanctions, andas a result of the defendant's failure to participate in thearbitration hearing all relate to Gleash's failure to participatein good faith. A review of the plaintiff's petition reveals thatshe is entitled to the following fees:

Description of service Cost