{ "id": 3626958, "name": "JEFFREY WOODS et al., Plaintiffs-Appellees, v. PATTERSON LAW FIRM, P.C., et al., Defendants-Appellants", "name_abbreviation": "Woods v. Patterson Law Firm, P.C.", "decision_date": "2008-03-31", "docket_number": "No. 1\u201408\u20140066", "first_page": "989", "last_page": "1001", "citations": [ { "type": "official", "cite": "381 Ill. App. 3d 989" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "319 Ill. App. 3d 1089", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1527706 ], "year": 2001, "pin_cites": [ { "page": "1098", "parenthetical": "noting that the plaintiffs engaged in discovery in affirming the trial court's order denying the plaintiffs' motion to compel arbitration" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/319/1089-01" ] }, { "cite": "142 Ill. 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Rev.", "year": 1988, "pin_cites": [ { "page": "480" } ], "opinion_index": 1 }, { "cite": "701 N.E.2d 1063", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 1 }, { "cite": "183 Ill. 2d 366", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209962 ], "year": 1998, "pin_cites": [ { "page": "387" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/183/0366-01" ] }, { "cite": "618 N.E.2d 1267", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 1 }, { "cite": "319 Ill. App. 3d 1089", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1527706 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "1093-94" }, { "page": "1095" }, { "page": "1093-96" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/319/1089-01" ] }, { "cite": "248 Ill. App. 3d 654", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 1096644 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "1192" }, { "page": "1192" }, { "page": "1192" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/316/1182-01" ] } ], "analysis": { "cardinality": 973, "char_count": 30882, "ocr_confidence": 0.832, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.10418464551408209 }, "sha256": "bfae1c112ac756168d46b50e9607614bb341fe6751d1827742cfb1fd810ccb36", "simhash": "1:5b3d4466c3459c56", "word_count": 4987 }, "last_updated": "2023-07-14T18:23:38.608554+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JEFFREY WOODS et al., Plaintiffs-Appellees, v. PATTERSON LAW FIRM, P.C., et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE ROBERT E. GORDON\ndelivered the opinion of the court:\nThis is an interlocutory appeal pursuant to Illinois Supreme Court Rule 307(a)(1) (188 Ill. 2d R. 307(a)(1)) from an order of the circuit court of Cook County denying defendants\u2019 joint motion to compel arbitration and to stay all judicial proceedings pending the conclusion of that arbitration. We affirm.\nBACKGROUND\nPlaintiffs Jeffrey Woods, Michael Nelson, Tango Grills, Inc., and The Helix Group, Inc., filed a legal malpractice action in the circuit court of Cook County against defendants Patterson Law Firm, PC., and Thomas Patterson. Plaintiffs alleged that defendants breached their professional duties in defending or failing to defend plaintiffs in four consolidated forcible entry and detainer actions, an action involving an alleged breach of a promissory note, and an action alleging unpaid vacation pay. Defendants represented plaintiffs pursuant to a written engagement agreement, which contained an arbitration provision. The arbitration provision to the written engagement agreement states, in pertinent part:\n\u201cAny controversy, dispute or claim arising out of or relating to our fees, charges, performance of legal services, obligations reflected in this letter, or other aspects of our representation shall be resolved through binding arbitration in Chicago in accordance with the rules then in effect of the American Arbitration Association, and judgment on the award rendered may be entered in any court having jurisdiction thereof. You acknowledge that by agreeing to arbitration, you are relinquishing your right to bring an action in court and to a jury trial.\u201d\nA. Defendants\u2019 Lawsuit to Recover Alleged Unpaid Legal Fees\nPrior to the present action, defendants filed a complaint in the circuit court of Cook County against plaintiff Woods. In that case, defendants alleged that plaintiff Woods owed them over $47,000 in unpaid legal fees. On November 7, 2005, defendants obtained a default judgment against plaintiff Woods. That same day, defendants filed a motion requesting that $45,000 of plaintiff Woods\u2019 monies, held in one of defendants\u2019 client trust accounts, be turned over to defendants in satisfaction of the default judgment. The trial court transferred the motion for a turnover order to Judge Alexander E White.\nOn November 16, 2005, plaintiff Woods\u2019 legal counsel filed an appearance on behalf of Woods. That same day, Woods, through his attorney, filed a motion to vacate the default judgment and to extend the time to file a responsive pleading. On November 28, 2005, the parties appeared before the trial court on plaintiff Woods\u2019 motion to vacate the default judgment. At that hearing, defendants requested a briefing schedule. The trial court granted defendants\u2019 request and ordered plaintiff Woods to answer defendants\u2019 complaint on or before December 2, 2005.\nThat same day, defendants appeared before Judge White on their motion for a turnover order for funds. Neither plaintiff Woods, nor his attorney, appeared at the motion for the turnover order. Defendants\u2019 motion for a turnover order was granted and transferred from defendants\u2019 client trust account.\nOn December 2, 2005, plaintiff Woods filed an answer to defendants\u2019 complaint, which sought collection of the alleged unpaid legal fees. On January 11, 2006, plaintiff Woods\u2019 motion to vacate the default judgment was granted. After the default judgment was vacated, plaintiff Woods served defendants with discovery requests. Defendants did not respond to the discovery requests but, rather, voluntarily dismissed the case pursuant to section 2 \u2014 1009 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 1009 (West 2004)).\nB. Plaintiffs\u2019 Legal Malpractice Action\nOn September 7, 2006, plaintiffs filed the instant legal malpractice action against defendants. On October 13, 2006, defendants filed an appearance and jury demand. On February 14, 2007, defendants filed a motion to dismiss plaintiffs\u2019 complaint pursuant to section 2 \u2014 615 of the Code (735 ILCS 5/2 \u2014 615 (West 2004)). Defendants\u2019 motion to dismiss asserted that plaintiffs\u2019 complaint failed to comply with sections 2 \u2014 603, 2 \u2014 606, and 2 \u2014 613 of the Code, in that the allegations of plaintiffs\u2019 complaint were not plain and concise statements, were not properly separated by counts, did not attach the written instrument on which the claims were based (engagement agreement), and did not attach referenced exhibits. 735 ILCS 5/2 \u2014 603, 2 \u2014 206, 2 \u2014 613 (West 2004). On March 8, 2007, the trial court denied defendants\u2019 motion to dismiss and ordered defendants to file a responsive pleading to plaintiffs\u2019 complaint. On April 25, 2007, defendants issued a subpoena for documents to a third party. On May 14, 2007, defendant served plaintiffs with requests to produce documents and written interrogatories.\nOn May 14, 2007, defendants filed a second motion to dismiss plaintiffs\u2019 complaint pursuant to section 2 \u2014 615 of the Code (735 ILCS 5/2 \u2014 615 (West 2004)). In the second section 2 \u2014 615 motion, defendants argued that plaintiffs\u2019 complaint should be dismissed because plaintiffs did not attach a copy of the parties\u2019 engagement agreement to their complaint. On May 21, 2007, the circuit court denied defendants\u2019 second motion to dismiss and ordered defendants to answer plaintiffs\u2019 complaint.\nOn June 4, 2007, defendants filed a demand for a bill of particulars and an answer to plaintiffs\u2019 complaint. In their affirmative defense, defendants asserted that the parties\u2019 disputes must be submitted to arbitration pursuant to the arbitration provision contained in the engagement agreement. On June 19, 2007, plaintiffs served their answers to defendants\u2019 written discovery. On July 3, 2007, plaintiffs filed a motion to strike defendants\u2019 demand for a bill of particulars. On August 21, 2007, plaintiffs\u2019 motion to strike defendants\u2019 demand for a bill of particulars was granted. On August 21, 2007, defendants served plaintiffs with a notice of deposition for plaintiff Woods for September 18, 2007. On August 29, 2007, plaintiffs served defendants with written interrogatories.\nOn September 25, 2007, defendants filed a motion to compel arbitration. On December 12, 2007, after hearing argument from all parties, the trial court entered an order denying defendants\u2019 motion to compel arbitration. Incorporated into the trial court\u2019s order was the transcript from the December 12, 2007, hearing. The trial court held that defendants\u2019 complaint seeking alleged unpaid legal fees did not amount to defendants\u2019 waiver of their right to compel arbitration because the arbitration agreement between the parties stated that arbitration would be conducted in accordance with the rules of the American Arbitration Association in effect at the time of arbitration. Rule 48(a) of the rules of the American Arbitration Association in effect at the time of the case at bar stated: \u201cNo judicial proceeding by a party relating to the subject matter of the arbitration shall be deemed a waiver of the party\u2019s right to arbitrate.\u201d Am. Arb. Ass\u2019n Com. R-48(a) (2007). However, the trial court did find that defendants waived their right to compel arbitration because defendants had filed two motions to dismiss and a demand for a bill of particulars, and defendants had actively and voluntarily participated in discovery by issuing interrogatories to plaintiffs, and by issuing a subpoena for documents on a third party in the case at bar. Defendants appeal.\nANALYSIS\nAs noted, this appeal was taken from the trial court\u2019s denial of defendants\u2019 motion to compel arbitration. Illinois Supreme Court Rule 307(a)(1) (188 Ill. 2d R. 307(a)(1)) provides that a party can appeal an interlocutory order granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction. Bishop v. We Care Hair Development Corp., 316 Ill. App. 3d 1182, 1189 (2000). \u201cA motion to compel arbitration is analogous to a motion for injunctive relief.\u201d Bishop, 316 Ill. App. 3d at 1189, citing Amalgamated Transit Union, Local 900 v. Suburban Bus Division of the Regional Transportation Authority, 262 Ill. App. 3d 334 (1994). Where, as here, an interlocutory appeal is brought pursuant to Illinois Supreme Court Rule 307(a)(1) (188 Ill. 2d R. 307(a)(1)), controverted facts or the merits of the case are not decided. Bishop, 316 Ill. App. 3d at 1189. The only question in such an appeal is whether there was a sufficient showing to affirm the order of the trial court granting or denying the relief requested. Bishop, 316 Ill. App. 3d at 1189. Thus, the standard of review in an interlocutory appeal generally is whether the trial court abused its discretion in granting or denying the requested relief. Bishop, 316 Ill. App. 3d at 1189.\nAs noted, the trial court denied defendants\u2019 motion to compel arbitration after finding that defendants waived their right to arbitrate the instant dispute. The trial court firstly found that, by operation of Rule 48(a) of the rules of the American Arbitration Association in effeet at the time of the case at bar, defendants\u2019 actions in filing a complaint against plaintiff Woods for alleged unpaid legal fees did not result in waiver of defendants\u2019 right to arbitrate the instant dispute. However, the trial court did find that defendants waived their right to compel arbitration because defendant had filed two motions to dismiss and a demand for a bill of particulars, and had actively and voluntarily participated in discovery by issuing interrogatories to plaintiffs, and by issuing a subpoena for documents on a third party in the case at bar.\nIllinois courts disfavor a finding of waiver. Bishop, 316 Ill. App. 3d at 1191, citing Jacob v. C&M Video, Inc., 248 Ill. App. 3d 654 (1993); First Condominium Development Co. v. Apex Construction & Engineering Corp., 126 Ill. App. 3d 843 (1984); Brennan v. Kenwick, 97 Ill. App. 3d 1040 (1981). However, the right to compel arbitration of a dispute can be waived as with any other contractual right. Bishop, 316 Ill. App. 3d at 1191, citing Ure v. Wangler Construction Co., 232 Ill. App. 3d 492 (1992). Illinois courts will find waiver of a party\u2019s right to compel arbitration when a party\u2019s conduct is inconsistent with an arbitration clause, thus indicating an abandonment of the right to arbitration. Bishop, 316 Ill. App. 3d at 1191, citing Burnett v. Safeco Insurance Co., 227 Ill. App. 3d 167 (1992). Additionally, a party waives its right to arbitrate by submitting arbitrable issues to a court for decision. Bishop, 316 Ill. App. 3d at 1191, citing Kostakos v. KSN Joint Venture No. 1, 142 Ill. App. 3d 533 (1986). Illinois courts also consider the delay in a party\u2019s assertion of its right to arbitrate and any prejudice the delay caused the plaintiff. Bishop, 316 Ill. App. 3d at 1191, citing Kostakos, 142 Ill. App. 3d at 537.\nDefendants contend that the trial court abused its discretion by denying their motion to compel arbitration. Specifically, defendants argue that the trial court abused its discretion because defendants did not submit arbitrable issues to the trial court for decision. Defendants argue that their actions in filing two section 2 \u2014 615 motions to dismiss and their demand for a bill of particulars were not inconsistent with their right to arbitrate. Defendants also argue that their actions in serving plaintiffs with requests to produce documents and written interrogatories, serving a subpoena for documents to a third party, and serving plaintiffs with a notice of deposition for plaintiff Woods were not inconsistent with their right to arbitrate. Defendants further contend that the trial court correctly ruled that defendants\u2019 actions in filing a complaint against plaintiff Woods for alleged unpaid legal fees did not result in waiver of defendants\u2019 right to arbitrate the instant dispute because of the operation of Rule 48(a) of the rules of the American Arbitration Association in effect at the time of the case at bar. Finally, defendants also remind this court that they asserted their right to arbitrate as an affirmative defense in their answer to the plaintiffs\u2019 complaint.\nPlaintiffs contend that the trial court did not abuse its discretion by denying defendant\u2019s motion to compel arbitration. Plaintiffs, despite the trial court\u2019s holding to the contrary, firstly argue that defendants waived their right to arbitrate by pursuing the fee case against plaintiff Woods. Plaintiffs contend that defendants\u2019 actions in following the fee case through to default judgment and pursuing the collection of the damage amount in the default judgment in the turnover proceedings amounted to defendants\u2019 waiver of the parties\u2019 arbitration provision. Secondly, plaintiffs argue that defendants waived the right to arbitrate by their actions in the case at bar. Specifically, plaintiffs argue that defendants\u2019 actions in filing two motions to dismiss and a bill of particulars, issuing interrogatories to plaintiffs, issuing a subpoena for documents to a third party, and by filing a notice for the deposition of plaintiff Woods constituted actions resulting in waiver of the parties\u2019 arbitration provision.\nFor the reasons that follow, we find that the trial court did not abuse its discretion by denying defendants\u2019 motion to compel arbitration. Before proceeding further, we note our agreement with the trial court\u2019s finding that defendant\u2019s action against plaintiff Woods for alleged unpaid legal fees did not waive defendants\u2019 right to compel arbitration of the current dispute. Defendants\u2019 suit to recover alleged unpaid legal fees and plaintiffs\u2019 suit against defendants for alleged legal malpractice do not arise from the same lawsuit and would not have required consideration of the same issues. Yates v. Doctor\u2019s Associates, Inc., 193 Ill. App. 3d 431, 441 (1990). As such, defendants\u2019 conduct relating to the suit to recover alleged unpaid legal fees should have no bearing on whether defendants waived their right to compel arbitration in the current dispute.\nHowever, we do find that defendants\u2019 conduct in the case at bar waived their right to compel arbitration.\nAs noted, defendants filed two motions to dismiss plaintiffs\u2019 complaint pursuant to section 2 \u2014 615 of the Code (735 ILCS 5/2 \u2014 615 (West 2004)), filed a demand for a bill of particulars, issued a subpoena for documents to a third party, served plaintiffs with requests to produce documents and written interrogatories, and served plaintiffs with a notice of deposition for plaintiff Woods.\nIn their brief to this court, defendants\u2019 cite to Atlas v. 7101 Partnership, 109 Ill. App. 3d 236 (1982), and to Kostakos v. KSN Joint Venture No. 1, 142 Ill. App. 3d 553 (1986), to support their argument that they did not waive their right to compel arbitration by their actions in the instant dispute.\nThe plaintiff in Atlas filed a complaint, an amended complaint, and two motions for preliminary injunction. After weighing the plaintiffs actions against what was then Rule 47(a) of the rule of the American Arbitration Association, the court determined that plaintiff did not waive his right to compel arbitration. In making this finding, the court noted that plaintiffs actions in filing a complaint, amended complaint, and two motions for preliminary injunctions constituted \u201climited legal maneuverings.\u201d Atlas, 109 Ill. App. 3d at 241.\nHowever, unlike Atlas, defendants\u2019 actions in the case at bar were not of a limited nature. Significantly, defendants actively participated in discovery by issuing interrogatories to plaintiffs, by issuing a subpoena for documents to a third party, and by filing a notice of deposition of plaintiff Woods. Kostakos, 142 Ill. App. 3d at 537 (noting that the defendants did not file interrogatories or take depositions in affirming a trial court\u2019s granting of the defendants\u2019 motion to compel arbitration); Schroeder Murchie Laya Associates, Ltd. v. 1000 West Lofts, LLC, 319 Ill. App. 3d 1089, 1098 (2001) (noting that the plaintiffs engaged in discovery in affirming the trial court\u2019s order denying the plaintiffs\u2019 motion to compel arbitration). We note that the use of interrogatories and subpoenas is not readily available in arbitration proceedings according to the rules of the American Arbitration Association, as the rules leave use of those procedures to the agreement of the parties to arbitration or to the discretion of the arbitrator. We also note that the availability of depositions is limited to large or complex arbitrations and is left to the discretion of the arbitrator even in those situations.\nThe defendants in Kostakos filed a motion to quash summons, a motion to dismiss for failure to join necessary parties, a motion to dismiss for failure to plead properly, a reply to a petition to appoint a receiver, a request to admit facts, a request to produce, a motion for issuance of a protective order, a demand for a bill of particulars, and a motion to produce documents, and participated in depositions taken by plaintiff. Kostakos, 142 Ill. App. 3d at 535. In affirming the trial court\u2019s order compelling arbitration, the Kostakos court found that the defendants had not waived their right to arbitration, because the defendants did not submit arbitrable issues to the trial court for determination. Kostakos, 142 Ill. App. 3d at 536-37. In making this finding, the court noted that defendants did not file interrogatories or take depositions, procedures not available in arbitration. Kostakos, 142 Ill. App. 3d at 537.\nHowever, unlike Kostakos, defendants in the case at bar did file interrogatories and did file notice for the deposition of plaintiff Woods. As noted, these procedures are not readily available in arbitration proceedings according to the rules of the American Arbitration Association, as the rules leave use of those procedures to the agreement of the parties to arbitration or to the discretion of the arbitrator.\nDefendants in the case at bar received responses to their propounded interrogatories, a procedure that we have already noted is not readily available in arbitration. On the other hand, it is true that although defendants issued a third-party subpoena for documents, they received no such documents. It is also true that although defendants filed a notice for the deposition of plaintiff Woods, there was no deposition. However, the proper focus of our inquiry in the case at bar is whether defendants acted inconsistently with their right to compel arbitration by attempting to further the defense of this lawsuit by actively participating in the judicial forum, not whether defendants were successful in that regard. Bishop, 316 Ill. App. 3d at 1191. The active participation in this case was the motion practice of the defendants and their attempt to obtain discovery through filing for interrogatories and depositions. Since defendants participated in procedures not readily available in arbitration, we cannot say that the trial court abused its discretion by finding that defendants waived their right to arbitrate this dispute. The defendants\u2019 actions in the case at bar were not consistent with those of a party intent on retaining the right to arbitrate.\nIf we were to follow the logic of the dissent, it would provide a party with the option of obtaining or attempting to obtain discovery in the courthouse, when discovery is not a matter of right under the arbitration process, and then when the discovery process has been concluded request arbitration. Arbitration was designed as an efficient and relatively inexpensive method of settling disputes. Atlas, 109 Ill. App. 3d at 240. It is an alternate dispute resolution process. If we allow a party to file or defend a court action with the intent to obtain discovery, the entire alternative dispute resolution process loses its major objective. The costs and the time parameters for the party litigants become prohibitive.\nCONCLUSION\nFor the foregoing reasons, we affirm the judgment of the circuit court of Cook County. We cannot say that the trial court abused its discretion by finding that defendants waived their right to arbitrate this dispute due to their actions in the case at bar, by actively participating in the discovery process and in furtherance of their lawsuit.\nAffirmed.\nAlthough the \u201cfee\u201d case was pending before Judge Dennis J. Burke, defendants\u2019 motion for a turnover order was set to be heard by Judge White. At that time in the law division of the circuit court of Cook County, Judge White was the supervising judge of the tax and miscellaneous remedies section of the law division and heard supplemental collection proceedings.\nIn their brief to this court, plaintiffs contend that defendants did not provide notice of the motion for a turnover order to plaintiff Woods. To the contrary, defendants contend that they provided notice of the hearing to plaintiffs\u2019 attorney at the November 28, 2005, hearing before Judge Burke. Although the parties discuss the notice of the hearing (or lack thereof) at great length, we find that whether plaintiff Woods had notice of the turnover hearing does not bear on the case at bar.", "type": "majority", "author": "JUSTICE ROBERT E. GORDON" }, { "text": "JUSTICE GARCIA,\nspecially concurring:\nI write separately to emphasize the deference we owe to the trial court in our review of its order, which, in my judgment, determines the outcome of this interlocutory appeal.\nIt is settled law that a motion to compel arbitration is subject to the deferential standard of review of an abuse of discretion. Schroeder, 319 Ill. App. 3d at 1093-94. \u201c[T]he scope of review in an interlocutory appeal is normally limited to determining whether the trial court abused its discretion in granting or refusing the requested interlocutory relief.\u201d Jacob v. C&M Video, Inc., 248 Ill. App. 3d 654, 664, 618 N.E.2d 1267 (1993).\nOur supreme court has also recognized that the abuse of discretion standard is \u201c \u2018the most deferential standard of review available with the exception of no review at all.\u2019 \u201d People v. Coleman, 183 Ill. 2d 366, 387, 701 N.E.2d 1063 (1998), quoting M. Davis, A Basic Guide to Standards of Judicial Review, 33 S.D. L. Rev. 469, 480 (1988). \u201cAn abuse of discretion occurs where no reasonable person would agree with the position adopted by the trial court.\u201d Schwartz v. Cortelloni, 177 Ill. 2d 166, 176, 685 N.E.2d 871, 876 (1997). Thus, a \u201ctrial court cannot be said to have abused its discretion if reasonable persons could differ as to its decision.\u201d In re Adoption of D., 317 Ill. App. 3d 155, 160, 739 N.E.2d 109 (2000).\nThe only real difference between Kostakos and this case lies in the question presented. In Kostakos, we were asked to find an abuse of discretion in the trial court\u2019s decision to order arbitration. We found no such abuse. Discretion works in either direction; a trial court may order arbitration or find waiver. In this case it found waiver. The deference owed to the trial court\u2019s determination, the standard we apply in reviewing its decision, remains the same regardless of the outcome, public policy favoring arbitration notwithstanding. (See Schroeder, 319 Ill. App. 3d at 1095, where we rejected the contention that the Arbitration Act \u201cleaves no room for the exercise of discretion.\u201d) While I agree that \u201climited legal maneuvering\u201d may not amount to waiver, I am not prepared to find an abuse of discretion where the trial court has found otherwise. Nor am I inclined to effectively substitute my judgment for the trial court\u2019s in determining whether the actions undertaken by the defendants are truly limited legal maneuvering rather than a conscious exercise of its choice of forum.\nI must also express mild disagreement with Justice Gordon\u2019s assertion that \u201cdefendants\u2019 conduct relating to the suit to recover alleged unpaid legal fees should have no bearing on whether defendants waived their right to compel arbitration in the current dispute.\u201d 381 Ill. App. 3d at 995. I submit that the defendants\u2019 decision to file suit for unpaid legal fees, where the written engagement agreement with the arbitration clause would play a role in the defendants\u2019 unpaid legal fees action, suggests the defendants as lawyers found a forum of choice in the circuit court. It also bears noting that it is this very agreement in which the defendants agreed to relinquish their \u201cright to bring an action in court and to a jury trial.\u201d Yet, they brought the unpaid legal fees action in court. And, when they filed their appearance in the instant case, they also filed a \u201cjury trial\u201d demand.\nI submit this case turns on our standard of review. Through the lens of that standard of review, there was a sufficient showing to sustain the order of the trial court. See Schroeder, 319 Ill. App. 3d at 1093-96. Here, the trial court determined the lawyers as defendants failed to act in accordance with the arbitration clause; the defendants have not persuaded us to disturb the trial court\u2019s ruling.\nBecause reasonable persons can differ as to the trial court\u2019s decision, as confirmed by the dissent, we cannot say as a matter of law that the trial court abused its discretion. See Kostakos, 142 Ill. App. 3d at 537.", "type": "concurrence", "author": "JUSTICE GARCIA," }, { "text": "JUSTICE WOLFSON,\ndissenting:\nArbitration is a favored method of settling disputes in Illinois. Kostakos v. KSN Joint Venture No. 1, 142 Ill. App. 3d 533, 536 (1986). Since arbitration is an efficient, relatively inexpensive method of settling disputes, \u201ca waiver of a right to arbitrate is not to be lightly inferred.\u201d Atlas v. 7101 Partnership, 109 Ill. App. 3d 236, 240 (1982).\nThe parties had an admittedly valid arbitration clause in their engagement agreement. They said their disputes \u201cshall be resolved through binding arbitration,\u201d in accord with American Arbitration Association (AAA) rules. The clause ended with words the plaintiffs now say do not apply: \u201cYou acknowledge that by agreeing to arbitration, you are relinquishing your right to bring an action in court and to a jury trial.\u201d\nBy agreeing to be bound by AAA rules, the parties adopted Rule 48(a): \u201cNo judicial proceeding by a party relating to the subject matter of the arbitration shall be deemed a waiver of the party\u2019s right to arbitrate.\u201d Am. Arb. Ass\u2019n Com. R-48(a) (2005).\nTrue, a party can act in a manner which is inconsistent with its contractual right to arbitrate. Schroeder Murchie Laya Associates, Ltd. v. 1000 West Lofts, LLC, 319 Ill. App. 3d 1089, 1095-96 (2001). But \u201climited legal maneuverings\u201d of a party do not waive its Rule 48(a) right to arbitrate. Atlas, 109 Ill. App. 3d at 241.\nThe existence of a waiver is determined \u201cby the type of issues submitted, not by the number of papers filed with the court.\u201d Kosta kos, 142 Ill. App. 3d at 536-37. Simply participating in the judicial forum does not demonstrate an abandonment of the right to compel arbitration. Kostakos, 142 Ill. App. 3d at 537.\nHere, the defendants filed two motions to dismiss, neither of them raising an arbitrable issue. They did not file a counterclaim. Instead, they filed an answer that contained an affirmative defense claiming a right to arbitrate the dispute. They filed a notice for deposition, but there was no deposition. They issued a third-party subpoena for documents, but received no documents. They filed interrogatories, and they received the same kind of information they most likely would have been entitled to in an arbitration proceeding. They did wait a long time before filing a motion to compel arbitration, but the delay was no longer than that in Kostakos or Bishop v. We Care Hair Development Corp., 316 Ill. App. 3d 1182, 1192 (2000).\nIn Bishop, the defendants waited 15 months before filing an answer setting up the arbitration clause as an affirmative defense. The plaintiffs did not contend they were prejudiced by the delay, and the court, as do we in this case, found no prejudice to the plaintiffs. Bishop, 316 Ill. App. 3d at 1192. Contesting venue did not constitute waiver in Bishop, 316 Ill. App. 3d at 1192. Filing a complaint, an amended complaint, and two motions for preliminary injunctions did not defeat the AAA Rule 48(a) \u201cno waiver\u201d of arbitration provision in Atlas, 109 Ill. App. 3d at 241.\nI see no real difference between this case and Kostakos. There, the defendants filed an answer and participated in numerous procedural matters \u2014 including a motion to quash service of summons, a motion to dismiss for failure to join necessary parties, a motion to dismiss for failure to plead properly, a reply to a petition to appoint a receiver, a request to admit facts, a request to produce, a motion for issuance of a protective order, a demand for a bill of particulars, a demand for production of certain documents, and participation in depositions taken by the plaintiff. In addition, the defendants moved to dismiss the complaint for failure to attach a copy of the agreement at issue\u2014 something that happened in this case. In Kostakos, as here, no arbitrable issues were submitted to the trial court. We held the defendants\u2019 participation in the judicial forum \u201cwas not so inconsistent with the contractual right to arbitrate as to indicate an abandonment of that right.\u201d Kostakos, 142 Ill. App. 3d at 537.\nIn short, the plaintiffs are trying to slip out of their contractual duty to arbitrate. We should not let it happen. I believe the trial court abused its discretion when it denied the defendants\u2019 motion to compel arbitration.\nThe majority envisions dire consequences should the \u201clogic of the dissent\u201d be followed. I do not see how requiring parties to fulfill their contractual obligations would produce the calamitous scenario spun by the majority. Just like the Federal Arbitration Act (9 U.S.C. \u00a71 et seq. (2000)) establishes \u201ca national policy favoring arbitration\u201d (Preston v. Ferrer, 552 U.S. 346, 349, 169 L. Ed. 2d 917, 923, 128 S. Ct. 978, 981 (2008)), Illinois decisions, including Bishop and Kostakos, reflect a policy preference for enforcement of arbitration clauses, judicial proceedings aside, especially when the parties agree to adopt AAA Rule 48(a). The rule and our cases draw the line: no waiver of arbitration unless an issue presented in the judicial proceeding relates to the subject matter of the arbitration. The defendants raised no such issue. We should hew to the line, undeterred by visions of horrific discovery tactics. Even where those tactics include (gasp!) the filing of interrogatories.\nI respectfully dissent.", "type": "dissent", "author": "JUSTICE WOLFSON," } ], "attorneys": [ "Mulherin, Rehfeldt & Varchetto, EC., of Wheaton (Patricia L. Argentati and Shana A. O\u2019Grady, of counsel), and James T. Nyeste, of Chicago, for appellants.", "Edward T. Joyce & Associates, EC., of Chicago (Edward T. Joyce and Robert D. Carroll, of counsel), for appellees." ], "corrections": "", "head_matter": "JEFFREY WOODS et al., Plaintiffs-Appellees, v. PATTERSON LAW FIRM, P.C., et al., Defendants-Appellants.\nFirst District (1st Division)\nNo. 1\u201408\u20140066\nOpinion filed March 31, 2008.\nGARCIA, J., specially concurring.\nWOLFSON, J., dissenting.\nMulherin, Rehfeldt & Varchetto, EC., of Wheaton (Patricia L. Argentati and Shana A. O\u2019Grady, of counsel), and James T. Nyeste, of Chicago, for appellants.\nEdward T. Joyce & Associates, EC., of Chicago (Edward T. Joyce and Robert D. Carroll, of counsel), for appellees." }, "file_name": "0989-01", "first_page_order": 1005, "last_page_order": 1017 }