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No. 3--03--0563

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

JUSTICE BOWMAN delivered the opinion of the court:

Defendant, Professional Realty & Development Corporation (PRDC), appeals the trial court'sorder confirming an arbitration award in favor of plaintiff, Sloan Electric (Sloan). PRDC argues thatthe trial court erred in confirming the award, because the arbitrator failed to dispose of all of theissues presented and made gross mistakes of fact and law. We affirm in part, reverse in part, andremand the cause.

On July 28, 2000, PRDC, a general contractor, subcontracted with Sloan to perform "designbuild" electrical work at Stonecroft Village, a senior housing project. The project consisted of a 32-unit structure and a 24-unit structure. In exchange for labor, services, and materials, Sloan was tobe paid $221,238. A contract dispute subsequently arose. According to PRDC, Sloan failed toprovide an electrical system design plan and "cut sheets" showing every device that would be usedin the system. On October 13, 2000, PRDC made a written demand for these documents. Sloanprovided a preliminary design plan on December 5, 2000, but in PRDC's opinion, the document wasunprofessional, incomplete, and unacceptable. On January 5, 2001, and January 19, 2001, PRDC sentSloan letters stating that PRDC had not yet received a complete design plan and cut sheets. Sloansubmitted some cut sheets and small plans of individual units on January 26, 2001. Four days later,PRDC sent Sloan a letter listing issues that needed to be addressed "[i]n order to complete the ***plan review." Sloan submitted another preliminary plan and more cut sheets on February 14, 2001. PRDC later informed Sloan that the fixtures that Sloan was proposing to install were not of adequatequality.

On March 5, 2001, PRDC sent Sloan a letter entitled "Additional Written Notice toSubcontractor" (additional notice), stating that PRDC intended to terminate Sloan due to Sloan'sfailure to supply a complete design plan and cut sheets of all products. The additional notice statedthat it was served pursuant to section 7.2.1 of the contract, which states that, if the subcontractorrepeatedly fails to perform according to the contract and also:

"fails within seven days after receipt of written notice to commence and continue correction of such default or neglect with diligence and promptness, the Contractor may, after sevendays following receipt by the Subcontractor of an additional written notice and withoutprejudice to any other remedy the Contractor may have, terminate the Subcontract and finishthe Subcontractor's Work by whatever method the Contractor may deem expedient." (Emphasis added.)

In such an event, the contractor would be entitled to damages from the subcontractor if thecompletion costs exceeded the unpaid balance of the contract. The same day that PRDC served theadditional notice, it hired an electrical inspector to examine Sloan's electrical work because it had"suspicions" that Sloan had made errors.

On March 6, 2001, Sloan delivered additional cut sheets to PRDC's attorney and part owner,Timothy Munson. Sloan's attorney, Wayne Whitmore, also attempted, without success, to arrangea meeting with PRDC to discuss the situation. On March 9, 2001, PRDC's inspector orally reportedthat the site appeared to have significant violations of the National Electric Code. By March 12,2001, seven days after PRDC had served the additional notice, Sloan had not provided a design planthat PRDC found satisfactory. That day, PRDC served Sloan a notice of termination and had thepolice escort Sloan's employees off the construction site. PRDC hired another electricalsubcontractor the following day. According to Sloan, PRDC refused to allow Sloan to return to thejobsite to retrieve its equipment.

On March 13, 2001, PRDC received the inspector's written report, identifying numerous code violations. According to PRDC, the majority of the violations were in areas that had already beencovered by drywall, and it took a total of 1,161 hours of labor, over a period of five months, tocorrect the errors. PRDC claims that it suffered $258,195 in damages as a result of the violations.

PRDC did not bring the alleged code violations to Sloan's attention before Sloan's termination. According to Sloan, it never had the opportunity to examine, fix, or challenge the purportedviolations. PRDC told Sloan that it had videotaped the defective work, but Munson later stated thatthe videotape was accidentally destroyed. PRDC subsequently provided 11 photographs allegedlyshowing defects in Sloan's work.

PRDC had provided the standard form contract that the parties signed, and it containedmediation and arbitration clauses. PRDC served Sloan an arbitration demand, claiming that Sloanbreached the contract. According to PRDC, Sloan refused to arbitrate, so PRDC filed an action infederal court for breach of contract. In turn, after PRDC refused Sloan's demand for a final paymentof $68,146.02, Sloan filed claims to foreclose on a mechanic's lien and for breach of contract. Eventually, PRDC and Sloan agreed to arbitrate "all disputes."

In arbitration, the parties filed cross-motions for summary judgment. PRDC argued that itproperly terminated Sloan for cause, that Sloan breached the contract and caused $258,195 indamages, and that Sloan's mechanic's lien was defective. PRDC's breach of contract claim requestedrelief under section 7.2.1, and PRDC also claimed that Sloan breached its warranties under sections4.1.2 and 4.5.1. Section 4.1.2 of the contract required Sloan to submit drawings, samples, and othersubmissions with "reasonable promptness," so as not to delay the project. Under section 4.5.1, Sloanwarranted that its work would be "free from defects." This section further stated, "This warrantyshall be in addition to and not in limitation of any other warranty or remedy required by law or by theSubcontract Documents."

Sloan argued in its motion for summary judgment that PRDC terminated Sloan for the allegedcode violations without first notifying Sloan of the problems or giving Sloan the opportunity to cure. Sloan further argued that PRDC's termination notices were defective, resulting in a termination forconvenience under the contract rather than a termination for cause. Sloan contended that it wastherefore entitled to damages under the contract's termination-for-convenience clause, section 7.3. Under section 7.3, Sloan would be entitled to an adjustment for "increases in Subcontract Time andSubcontract sum, including profit on the increased cost of performance, caused by suspension, delayor interruption." Adjustments were not allowed if the performance was suspended "by another causefor which the Subcontractor is responsible" or if "an equitable adjustment is made or denied underanother provision of this Subcontract." Sloan claimed that, because the contract was improperlyterminated, Sloan was not responsible for PRDC's completion costs. Sloan also argued that PRDCwas barred from claiming that Sloan's work was defective, because PRDC had not allowed Sloan toview the deficiencies and had destroyed relevant evidence. In addition to damages under section 7.3,Sloan sought recovery under the Mechanics Lien Act (Act) (770 ILCS 60/0.01 et seq. (West 2000)) because the Act allows the award of attorney fees and costs (770 ILCS 60/17 (West 2000)).

A few days before the scheduled arbitration hearing, the arbitrator, a former judge, contactedthe parties and said that an opportunity had arisen for him to return to the bench. He cancelled thescheduled proceedings, stating that he thought that he could decide the case based on the summaryjudgment motions. The arbitrator subsequently notified the parties that he was ready to rule basedon the evidence presented, but that he would consider any additional evidence submitted by theparties by November 11, 2002. In response, PRDC submitted additional documents.

The arbitrator issued a 10-page decision, concluding that a termination for convenienceoccurred. As the arbitrator's considerations and reasoning are central to the disputes in this case, wequote extensively from the decision. The arbitrator began by stating that the parties had presentedhim with cross-motions for summary judgment. He recited facts for the first five pages of thedecision, and he included copies of PRDC's March termination notices. Among these facts, thearbitrator stated that, after PRDC terminated Sloan:

"Sloan's then [A]ttorney Whitmore called Attorney Munson after the [sic] Sloan's removal from the project site, it appears on the same March 12^th, 2001, and in sum theconversation between the two was to the effect that Attorney Whitmore suggested that therewas no need for [A]ttorney Munson to use the police to remove Sloan. Attorney Munsonsaid it was done for the convenience of PRDC to get new electricians on the job immediatelyto start correcting hundreds of thousands of dollars worth of damages. It appears a videotapeof the damage alleged to have been caused by Sloan was made by Attorney Munson, but laterwas lost and never shared with Sloan. Shortly thereafter Attorney Whitmore for Sloanrequested of Munson the authority to enter the site to recover Sloan equipment, and wasrefused. The depositions of Attorney Munson and Attorney Whitmore make it obvious thatany further consideration of Sloan's work was not to be." (Emphasis added.)

The arbitrator mentioned that PRDC hired an inspector to review Sloan's work, and that soon afterSloan's termination, PRDC hired another subcontractor. He then stated:

"Both PRDC and Sloan have submitted evidence of the claimed damages of each.

Some estimates were exaggerated and some demands were unreasonable given thecircumstances, in this arbitrator's opinion."

The arbitrator subsequently stated that PRDC's additional notice was actually the first propertermination notice and that PRDC did not provide a second notice as required by section 7.2.1. Thearbitrator then stated:

"More importantly, however, are the following activities of PRDC. It is worth repetition to remind the reader that PRDC planned to terminate Sloan prior to March 5^th,2001, and only on March 5^th delivered the first 7-day termination notice to Sloan; that onMarch 6^th, Attorney Munson, as PRDC's local agent and a partial owner accepted Sloan'sattempted corrective offerings but neglected to forward them onto [sic] PRDC's home officeuntil March 9^th, 2001, a Friday. On the same day an electrical expert firm, Lang, was engagedto commence the inspection of Sloan's work by Mr. Chiasky.

*** [I]t is obvious from [Mr. Chiasky's] deposition that no consideration was to begiven to Sloan to complete the project at that time.

Importantly, during this early timeframe, neither Sloan nor it's [sic] attorney Whitmorereceive a response from PRDC to meet and to consider exactly what further corrective action needed to be taken to satisfy PRDC, and Sloan received no response from it's [sic] submissionof new cut sheets and the fixture index Sloan delivered to PRDC on March 6^th, 2001. Additionally *** Sloan was refused to be allowed to remove Sloan property left on theconstruction site. Additionally, the depositions of Attorneys Whitmore and Munson clearlysupport finding that the termination of Sloan satisfied PRDC's desire to replace Sloanimmediately.

Further there is no need to 'read between the lines' for this arbitrator to find that PRDC, unhappy with Sloan as the electrical contractor on it's [sic] several million dollarproject, would settle for nothing short of a termination of Sloan. PRDC then proceeded tothereafter refuse to allow Sloan to 'commence and continue correction' (7.2.1) after March5^th, 2001, thereby violating the spirit and intent and purpose of the first 7-day terminationnotice provision.

***

However, under all the circumstances here presented an equitable rendering of damages to Sloan is rather difficult. The evidence is that Sloan's work was not satisfactory. The evidence is that PRDC did not want Sloan back on the job site. The evidence is thatPRDC experts were engaged on March 5^th not to suggest corrective action of the NationalElectric Code violations or otherwise by Sloan, but instead supplied findings to the successorelectrical subcontractor ***. The evidence is that Sloan was going to be and was terminatedfor unsatisfactory work and for the convenience of PRDC. Accordingly the Motion forSummary Judgment of PRDC is denied." (Emphasis added.)

Next, the arbitrator listed the damages that Sloan had presented in its motions, which includedline items for recording and filing the mechanic's lien claim. He stated that, under section 7.3, noadjustment was to be made to the extent that the subcontractor was responsible. The arbitrator thengranted Sloan summary judgment "in part" and awarded Sloan $68,643.66 in damages. This totaldid not include costs relating to the mechanic's lien claim, Sloan's anticipated profit, or interest, butit did include $20,000 in attorney fees.

PRDC moved to "reconsider, modify, correct or clarify" the award, and the arbitrator deniedthe motion. Sloan moved to confirm the award in the trial court. PRDC again moved to vacate,modify, or correct the award. The trial court denied PRDC's motion and confirmed the award. PRDC timely appealed.

On appeal, PRDC argues that the trial court erred in confirming the award, because thearbitrator: made gross mistakes of fact and law regarding the breach of contract claim; failed toaddress PRDC's breach of warranty claim, the "waiver of the notice provision," and Sloan'smechanic's lien claim; and made a gross error of law by awarding damages without an evidentiaryhearing. We review the trial court's ruling de novo, as only the trial court's legal conclusions are atissue. Hawrelak v. Marine Bank, Springfield, 316 Ill. App. 3d 175, 179 (2000).

The purpose of arbitration is to resolve a dispute in less time and with less expense thanlitigating in court. Edward Electric Co. v. Automation, Inc., 229 Ill. App. 3d 89, 96 (1992). Partieswho agree to arbitration have chosen the means to resolve their dispute, and judicial modification ofan arbitrator's decision deprives the parties of that choice. Hawrelak, 316 Ill. App. 3d at 179. Assuch, an appellate court's review of an arbitrator's award is much more limited than review of a trialcourt's decision, and, whenever possible, a court must construe an award so as to uphold its validity. Hawrelak, 316 Ill. App. 3d at 178-79. A court has no power to determine the merits of the awardsimply because it strongly disagrees with the arbitrator's contract interpretation. Canteen Corp. v.Former Foods, Inc., 238 Ill. App. 3d 167, 179 (1992). Also, a court cannot overturn an award onthe ground that it is illogical or inconsistent. Perkins Restaurants Operating Co., L.P. v. Van DenBergh Foods Co., 276 Ill. App. 3d 305, 309 (1995). In fact, an arbitrator's award will not be set aside even for errors in judgment or mistakes of law or fact. Roubik v. Merrill Lynch, Pierce, Fenner &Smith, Inc., 181 Ill. 2d 373, 381 (1998). As our supreme court stated, a " 'contrary course would bea substitution of the judgment of the Chancellor in place of the judges chosen by the parties, andwould make an award the commencement, not the end, of litigation.' " Garver v. Ferguson, 76 Ill.2d 1, 9 (1979), quoting Burchell v. Marsh, 58 U.S. (17 How.) 344, 349, 15 L. Ed. 96, 99 (1854); seealso Hawrelak, 316 Ill. App. 3d at 181 ("Once parties bargain to submit their disputes to thearbitration system (a system essentially structured without due process, rules of procedure, rules ofevidence, or any appellate procedure), we are disinclined to save them from themselves").

The limited circumstances under which we may modify or vacate an arbitration award are setforth in the Uniform Arbitration Act (Arbitration Act) (710 ILCS 5/1 et seq. (West 2002)). Section13(a) of the Arbitration Act (710 ILCS 5/13(a) (West 2002)) allows a court to modify or correct anaward where: there was an evident miscalculation or an error in a description; the arbitrator ruled ona matter not submitted to him, and the court is able to correct the award without affecting the meritsof the decision upon the issues submitted; or the award is imperfect in form. Under section 12(a) ofthe Arbitration Act (710 ILCS 5/12(a) (West 2002)), a court can vacate an award in the followingcircumstances: the award was obtained by corruption or fraud; the arbitrator was partial, exceededhis powers, or unreasonably refused to postpone the hearing or to hear material evidence; or therewas no arbitration agreement.

While a court cannot vacate an award due to errors in judgment or mistakes of fact or law,a court can vacate an arbitration award where a gross error of law or fact appears on the award's face,or where the award fails to dispose of all matters properly submitted to the arbitrator. EdwardElectric Co., 229 Ill. App. 3d at 97-98; see 7-Eleven, Inc. v. Dar, 325 Ill. App. 3d 399, 409 (2001)(if an award is broader or narrower than the submission, the entire award is void because thearbitrator has exceeded his powers). To vacate an award based on a gross error of law, a reviewingcourt must be able to conclude, from the award's face, that the arbitrator was so mistaken as to thelaw that, if apprised of the mistake, he would have ruled differently. Lee B. Stern & Co. v.Zimmerman, 277 Ill. App. 3d 423, 428 (1995); see Board of Education of the City of Chicago v.Chicago Teachers Union, Local No.1, 86 Ill. 2d 469, 477 (1981) (arbitrator's application of oldversion of statute would constitute gross mistake of law). The party moving to vacate the awardmust present clear, strong, and convincing evidence that the award was improper. Hawrelak, 316Ill. App. 3d at 179.

In this case, the arbitrator made his decision based on the parties' cross-motions for summaryjudgment. Summary judgment is appropriate where the pleadings, depositions, admissions, andaffidavits on file, when viewed in the light most favorable to the nonmoving party, show that thereis no genuine issue of material fact and that the moving party is entitled to judgment as a matter oflaw. 735 ILCS 5/2--1005(c) (West 2002). If the parties file cross-motions for summary judgment,they agree that no material issues of fact exist and that only legal questions are involved. State FarmInsurance Co. v. American Service Insurance Co., 332 Ill. App. 3d 31, 36 (2002). However, despitethe existence of cross-motions for summary judgment, the court should not rule in favor of eitherparty if a genuine issue of fact precludes summary judgment. State Farm Insurance Co., 332 Ill. App.3d at 36.

We first address PRDC's claim that the arbitrator made gross mistakes of fact relating to thebreach of contract claim. PRDC disputes the following statements: (1) "Attorney Munson said [thepolice escort] was done for the convenience of PRDC to get new electricians on the job immediately to start to correct hundreds of thousands of dollars worth of damages"; (2) "[t]he depositions ofAttorney Munson and Attorney Whitmore make it obvious that any further consideration of Sloan'swork was not to be"; and (3) "the depositions of Attorneys Whitmore and Munson clearly supportthe finding that the termination of Sloan satisfied PRDC's desire to replace Sloan immediately."

Concerning the first alleged mistake of fact, PRDC contends that Munson never made sucha declaration. PRDC further contends that the arbitrator mistakenly stated that the attorneys'conversation about the termination took place on March 12, 2001, the day PRDC terminated Sloan; PRDC maintains that the conversation actually occurred after March 23, 2001. PRDC asserts thatthe arbitrator used this mistaken information to "read between the lines" and infer that PRDCterminated Sloan for code violations, a ground not stated in the termination notice, and thus did notproperly terminate Sloan for cause.

As mentioned, we are able to vacate an award due to a gross factual error only if the erroris apparent on the award's face. Edward Electric Co., 229 Ill. App. 3d at 97. Limiting our reviewto the award's face, the disputed statement is not erroneous. See American Invsco Realty, Inc. v.Century 21, Rohter & Co., 96 Ill. App. 3d 56, 59 n.2 (1981) (in determining whether an awardcontains a gross mistake of fact, court may not examine record on which the arbitrator relied). Wealso note that, as the award's language reveals, the statement itself was, at most, only a secondaryconsideration in the determination that PRDC terminated Sloan for convenience. Furthermore, theexact date of the conversation is not material. PRDC admits that it hired the inspector beforeterminating Sloan because it had "suspicions" about Sloan's work, and PRDC received an oral reportfrom the inspector about apparent code violations several days before Sloan's termination. Theparties do not dispute that PRDC did not receive the inspector's written report until after thetermination. Contrary to PRDC's assertion that the arbitrator used the incorrect date to "readbetween the lines," the arbitrator specifically stated that there was "no need to 'read between thelines' " in determining that PRDC wanted to terminate Sloan.

PRDC argues that the second and third statements are gross errors of fact because, in theexcerpts of Munson's testimony submitted to the arbitrator, Munson discusses only the loss of videotape evidence and does not mention Sloan's work or the termination. However, as stated, indetermining whether an award contains gross factual errors, we may not examine the evidencesubmitted to the arbitrator. American Invsco Realty, Inc., 96 Ill. App. 3d at 59 n.2. The award's facedoes not reveal that the disputed statements are erroneous.

PRDC further claims that the arbitrator incorrectly "inferred" that Sloan attempted to cureits default by delivering additional cut sheets and a fixture list to Munson, and that PRDC did not giveSloan an opportunity to cure its default. PRDC maintains that Sloan did not successfully cure itsdefault because it never submitted a complete design plan. We decline to explore this issue becausean improper inference would not qualify as a gross mistake of law or fact appearing on the award'sface, nor constitute any other ground upon which we may vacate an arbitration award.

Next, PRDC argues that the arbitrator made a gross mistake of law in determining that atermination for convenience occurred, because, at a minimum, he should have held an evidentiaryhearing to resolve the issue. We note that the parties filed cross-motions for summary judgment,thereby agreeing that all issues could be determined as a matter of law. See State Farm InsuranceCo., 332 Ill. App. 3d at 36. Still, a genuine issue of material fact would warrant further proceedings. State Farm Insurance Co., 332 Ill. App. 3d at 36. Here, in arriving at his decision, the arbitratorrelied primarily on the relevant contract clauses, the notices sent to Sloan, and the undisputed facts. Based on these sources, the arbitrator could have determined, as a matter of law, that PRDCterminated Sloan for convenience. See Garver, 76 Ill. 2d at 9, quoting M. Pirsig, Some Commentson Arbitration Legislation and the Uniform Act, 10 Vand. L. Rev. 685, 706 (1957) (court mustdetermine " 'whether the construction of the contract made by the arbitrator is a reasonably possibleone that can seriously be made in the context in which the contract was made' "). We conclude thatthe arbitrator did not make a gross error of law in resolving this issue without an evidentiary hearing.

We next address PRDC's argument that the arbitrator failed to decide PRDC's breach ofwarranty claim. There is a presumption that the arbitrator considered all claims, and the award neednot show how each item of the parties' respective demands was resolved. Edward Electric Co., 229Ill. App. 3d at 100; see Cohen v. Meyers, 115 Ill. App. 2d 286, 293 (1969) (arbitrator's lack ofreference to defendants' arguments does not mean that arbitrator failed to consider them). Arbitrators"need not provide explanations or rationale to show how their conclusions were reached. Anarbitrator need only announce his result." Braun/Skiba, Ltd. v. Orchard Partnership, 177 Ill. App.3d 331, 335 (1988). Here, the arbitrator clearly stated that PRDC "claims a breach of theconstruction design/build" contract, and he expressly denied PRDC's summary judgment motion. Although the arbitrator did not directly address the breach of warranty claim, we must presume thathe considered and rejected this claim.

PRDC argues that, even if the arbitrator denied summary judgment on its breach of warrantyclaim, there should have been an evidentiary hearing on the claim. PRDC contends that the issue wasnot fully resolved because Sloan did not move for summary judgment on the issue. We disagree. Theparties filed cross-motions for summary judgment, and the arbitrator could have considered andrejected PRDC's breach of warranty claim as a matter of law. As stated, the arbitrator was notrequired to discuss his reasoning. Even if, arguendo, the arbitrator made a gross legal error inresolving PRDC's breach of warranty claim, we cannot vacate the award on this basis because theerror does not appear on the award's face.

Next, PRDC argues that the arbitrator failed to address the issue of "waiver of the noticeprovision." PRDC contends that, even if its termination process was defective because it did not giveSloan a second, seven-day notice, Sloan was not harmed by the defect. PRDC maintains that, according to a relevant treatise, the second notice period is for the benefit of the general contractorand is not intended to provide the subcontractor with an additional seven days to cure its default. PRDC further maintains that Sloan could not have cured its default even if it had been given anadditional seven days, because it took the second subcontractor five months to repair the codedefects. As to the final assertion, we note that PRDC has repeatedly maintained that it terminatedSloan for failing to supply an appropriate design plan and all relevant cut sheets, rather than for failingto correct substandard electrical work. In any event, we conclude that PRDC's argument is withoutmerit. The issue of "waiver of the notice provision" is essentially an argument in support of PRDC'sbreach of contract and breach of warranty claims. The arbitrator denied summary judgment forPRDC on these claims, and he was not required to mention how he resolved particular arguments,including this one, in arriving at his conclusion. See Cohen, 115 Ill. App. 2d at 293.

We now turn to PRDC's argument that the arbitrator failed to address Sloan's mechanic's lienclaim. PRDC points out that the award does not expressly state that the arbitrator resolved the lienclaim in Sloan's favor. However, as discussed, we must presume that the arbitrator resolved allclaims. The mechanic's lien issue was clearly before the arbitrator, as both parties definitively movedfor summary judgment on this issue. In the award, the arbitrator expressly cited Sloan's evidence ofdamages relating to the lien claim, including line items for the costs of recording the mechanic's lienand filing the mechanic's lien suit. He also awarded Sloan attorney fees, which were prohibited bythe contract but allowed under the Mechanics Lien Act (770 ILCS 60/17 (West 2000)). Thearbitrator stated that Sloan's summary judgment motion was "granted in part," and he awarded Sloana portion of the damages requested. As such, PRDC has not provided clear evidence to overcomethe presumption and actual indications that the arbitrator ruled on the mechanic's lien claim.

Finally, PRDC argues that the arbitrator made a gross error of law by determining thedamages on Sloan's breach of contract and mechanic's lien claims without holding an evidentiaryhearing. We agree. The arbitrator stated that both parties' evidence of damages contained some"exaggerated" estimates and "unreasonable" demands. As such, there was clearly a disputed factualissue regarding the amount of damages suffered by the parties. Furthermore, the arbitrator ruled thatunder the contract's termination-for-convenience provision, section 7.3, Sloan was not entitled to anequitable adjustment to the extent that Sloan was responsible. Because "Sloan's work was notsatisfactory," the arbitrator awarded Sloan only a portion of the damages requested. However, thedegree to which Sloan's work may have been unsatisfactory was also a disputed issue of fact thatwould affect the damage award. Accordingly, we hold that the arbitrator made a gross error of lawby awarding Sloan damages in summary judgment. An evidentiary hearing is required to determinethe amount of damages to which Sloan is entitled.

Sloan argues that an evidentiary hearing is unnecessary because PRDC willingly submittedthe dispute to the arbitrator to resolve on the basis of the summary judgment motions. Sloan pointsout that, after the arbitrator informed the parties that he was ready to rule but would examine anyadditional evidence submitted, PRDC supplemented the summary judgment record but neversuggested that the case could not be resolved through summary judgment. Sloan's argument is notpersuasive. As discussed, even if the parties file cross-motions for summary judgment, judgmentshould not be entered in either party's favor if a genuine issue of material fact exists. State FarmInsurance Co., 332 Ill. App. 3d at 36. Here, there were significant disputed issues of fact relating todamages, and the arbitrator's failure to hold an evidentiary hearing on the matter constituted a grosserror of law. Accordingly, the trial court erred in fully confirming the arbitration award.

An arbitration award is severable and sustainable in part if portions of the award are not inany manner dependent on one another. Edward Electric Co., 229 Ill. App. 3d at 105. Such is thesituation here, as the damages award may be vacated without affecting the remainder of thearbitrator's decision. Therefore, we affirm the judgment of the circuit court of La Salle County in allrespects, except as it pertains to damages. We vacate the damages awarded to Sloan, and we reverseand remand the cause for further proceedings, consistent with this opinion, on the issue of the amountof damages to which Sloan is entitled.

Affirmed in part and reversed in part; cause remanded.

KAPALA, J., concurs.

PRESIDING JUSTICE O'MALLEY, specially concurring:

I agree with all aspects of our opinion in this case, but write separately to point out theexistence of a competing line of cases that muddy the analytical field. Both lines of cases state thata reviewing court will not vacate an arbitration award unless, among other things, "a gross error oflaw or fact appears on the face of the award." Edward Electric Co. v. Automation, Inc., 229 Ill. App.3d 89, 97 (1992). Unfortunately, the lines are divided in their application of the "gross error"standard.

Our opinion in this case sufficiently illustrates a strict application of the "gross error" standard. In addition, one of the cases cited above, Hawrelak v. Marine Bank, Springfield, 316 Ill. App. 3d 175,181 (2000), is illuminating in its discussion of the "gross error" standard. It states, relevantly:

"Once parties bargain to submit their disputes to the arbitration system (a systemessentially structured without due process, rules of procedure, rules of evidence, or anyappellate procedure), we are disinclined to save them from themselves. For instance,Hawrelak's claim that the arbitrators erred by refusing to exclude nontestifying witnesses fromthe hearing room is wholly without merit. While this might be a serious issue in trial courtproceedings, it is not an issue in arbitration proceedings. Absent any evidence that this awardwas made in bad faith, that any of the arbitrators were guilty of fraud or corruption, or thatthe arbitrators deliberately chose not to follow the law, the trial court's vacatur of thearbitration award cannot stand.

In so concluding, we reaffirm what we wrote in Tim Huey, 272 Ill. App. 3d 100, 649N.E.2d 1358, in which we affirmed the trial court's confirmation of an arbitration award:

'We see no principled way to inject ourselves into this case, to correct anaward of damages we suspect is insufficient, where the parties have exercised theirright to select an alternate forum. That is not to say that we are satisfied with thearbitrators' award in this case. If a jury had made this award, we might well reverseit. *** We should not concoct some reason to review arbitration awards we do notlike, however, at the same time stating that we will not set aside an award because oferrors in judgment or mistakes of law or fact.' Tim Huey, 272 Ill. App. 3d at 108-09,649 N.E.2d at 1364." (Emphasis in original.) Hawrelak, 316 Ill. App. 3d at 181.

Hawrelak and Tim Huey both demonstrate that, when strictly applied, the "gross error" standardprovides for a very limited review on the part of the appellate court.

On the other hand, a number of cases oxymoronically delve into the record in order todetermine whether the arbitrator made a gross error on the face of the award. For example, in EverenSecurities, Inc. v. A.G. Edwards & Sons, Inc., 308 Ill. App. 3d 268, 275 (1999), the court noted that"because the [arbitration] panel in the instant case failed to provide any rationale for its award in theaward document, we are compelled to review the arbitration hearing transcripts provided in therecord to determine the propriety of the award." The Everen court then proceeded to search therecord far beyond the face of the arbitration award.

In addition, Ryan v. Kontrick, 304 Ill. App. 3d 852, 859 (1999), contains the followinginteresting discussion:

"We next address Kontrick's claim that the arbitrator's award of attorney fees mustbe vacated because it lacked supporting evidence.

This issue is not reviewable. *** A mistake of law or fact will not serve as a basisto vacate an award, unless the error is gross and apparent on the face of the award.[Citations.]

Kontrick has waived review of this issue where he did not object to the lack ofsupporting evidence before the arbitrator but argued only that the award was improperbecause both parties were 'at fault.' [Citations.] Moreover, the award of attorney fees doesnot constitute a gross error that was apparent on the face of the award."

This passage indicates that the court reviewed the record to determine what the appellant had arguedbefore the arbitration panel, even though it also invoked the "gross error" standard of review. Thissearching review of the record is wholly at odds with the stated manner of review.

In my view, the method employed to review the arbitration award in this case satisfies boththe logic and the purposes behind arbitration. If a reviewing court is to carefully sift the record ofan arbitration case, then no longer will the parties receive the nonjudicial dispute resolution for whichthey bargained. Instead, the review of an arbitration case will proceed exactly like the review of anycase from the circuit court and provide an expensive and judicial resolution to the dispute. Thus, theline of cases including Tim Huey, Hawrelak, and this one provide a significantly better reasoned andlogical application of the "gross error" standard.