Opinion
2-21-0500
03-11-2022
JESSICA IMPSON, Plaintiff-Appellant, v. XCHANGE MOTORS, INC., Defendant-Appellee.
This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Du Page County. No. 21-CH-163 Honorable Paul M. Fullerton, Judge, Presiding.
JUSTICE SCHOSTOK delivered the judgment of the court. Presiding Justice Bridges and Justice Zenoff concurred in the judgment.
ORDER
SCHOSTOK, JUSTICE.
¶ 1 Held: Any ambiguity created by the parties' two versions of a vehicle purchase agreement-one of which indicated that the agreement was subject to arbitration and the other that it was not-was resolved by a contemporaneous arbitration agreement specifying that it applied to all transactions (past, present, or future) between the parties. Thus, the trial court did not err in dismissing plaintiffs complaint and compelling arbitration.
¶ 2 Plaintiff, Jessica Impson, filed a complaint against defendant, Xchange Motors, Inc., stemming from plaintiff s purchase of an automobile from defendant. Defendant filed a motion to dismiss and compel arbitration, which the trial court granted. Plaintiff filed a motion for reconsideration. Following the denial of her motion, plaintiff timely appealed. For the following reasons, we affirm.
¶ 3 I. BACKGROUND
¶ 4 On May 5, 2021, plaintiff filed a two-count complaint against defendant seeking equitable relief and damages in connection with her purchase of a 2008 Subaru Impreza. The complaint alleged that, "on the 11th day after the purchase, and before Plaintiff drove 500 miles, the engine blew," and defendant refused to repair it under the "statutory warranty." According to plaintiff, the "transaction documents" reveal that "the transaction was voidable at Plaintiff's option." Plaintiff attached to the complaint, among other things, a copy of the "Buyer's Order." The Buyer's Order, dated March 12, 2021, and signed by plaintiff and defendant, contained the following provision above the parties' signatures: "A separate Arbitration Agreement is a part of this Contract." In front of this provision, on the same line, was an unchecked preprinted box.
¶ 5 On June 1, 2021, defendant filed a motion to dismiss and compel arbitration under section 2-619(a) (9) of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(a) (9) (West 2020)), and the Illinois Arbitration Act (710 ILCS 5/1 et seq. (West 2020)). Defendant alleged that, as a part of plaintiff's purchase of the vehicle, plaintiff and defendant entered into an arbitration agreement, which it attached to the motion. The "Arbitration Agreement" was dated March 12, 2021, and signed by plaintiff and defendant. It provided that plaintiff and defendant agreed to arbitrate "[c]laims arising from or relating to the Transactions described below." It further provided that "Transactions" referred to "[a]ny and all past, present, and future transactions and agreements between you and me in which I am or may become obligated to you and all related documents."
¶ 6 In response, plaintiff did not dispute that she entered into the Arbitration Agreement. Instead, she argued that the Arbitration Agreement was not a part of the contract under which she sued defendant, based on the absence of a check in the box noted above.
¶ 7 In reply, defendant argued that the box was checked. It attached to its reply a copy of an identical Buyer's Order showing the box checked. Defendant argued further that, assuming arguendo that the box was unchecked, the Arbitration Agreement "incorporated itself" into the Buyer's Order.
¶ 8 Thereafter, plaintiff submitted a "supplemental affidavit," averring as follows:
"Defendant attaches a different version of the Buyer's Order to its Reply Brief. I do not have this version among my papers, and I never saw it. The only version of the Buyer's Order I am aware of is the one I received at the completion of the transaction, i.e., the version attached to my Response brief as Exhibit A."
The Buyer's Order that plaintiff attached to her complaint (with the unchecked box) contains both parties' signatures. But the Buyer's Order that plaintiff attached to her response brief (also with the unchecked box), contains only her signature. Moreover, plaintiff's signatures on the documents are obviously not identical, even in layperson's eyes. Thus, contrary to her averment, the version attached to her response brief cannot be the "only version" that she received.Nevertheless, as noted, the Buyer's Order that she attached to her complaint does contain both parties' signatures and the box is unchecked.
¶ 9 A hearing on defendant's motion to dismiss and compel arbitration took place on July 21, 2021. At the hearing, plaintiff's counsel argued that "when they gave my client the unchecked copy, that's the agreement that they reached.
And what they did afterwards was that they put the-check the mark-check the box five minutes later or a year later. It doesn't really matter, because that does not present the agreement that was reached." Plaintiff's counsel confirmed to the court that plaintiff did not deny signing the Arbitration Agreement.
¶ 10 The trial court ruled as follows:
"Okay. Yeah, the motion is granted. You folks can argue perhaps at the arbitration about the checking of the box or whether it was checked or whether it was not checked.But the fact that she signed the arbitration agreement on the same day, contemporaneous with signing the contract shows the clear intent actually of both parties."
¶ 11 Plaintiff moved for reconsideration. Plaintiff argued that the parties' intent was not clear, given that the box in the Buyer's Order was unchecked. Plaintiff argued: "If the box were checked, the legal effect would be obvious: the arbitration provision is part of the contract. But the box was not checked, and still, the arbitration provision was found by the Court to be part of the contract." Plaintiff asserted: "The correct finding must be that the contract is minimally ambiguous with respect to the intent to invoke arbitration, and, being ambiguous, it must be construed against Defendant." Plaintiff further argued that the trial court erred in deferring to the arbitrator whether the box was checked, because, under Illinois law, the trial court determines in the first instance whether the parties have a valid arbitration clause. Plaintiff concluded: "Thus, with respect to 'the checking of the box or whether it was checked or *** not checked,' the parties are entitled to have this determination made by the Court, not in arbitration."
¶ 12 In response, defendant argued that the box in the Buyer's Order was checked and that, thus, the Buyer's Order did incorporate the Arbitration Agreement. Defendant further argued that plaintiff admitted that she signed the Arbitration Agreement, which, according to defendant, indicated plaintiff's intent to be bound by it. Defendant argued that plaintiff "neither asserts nor alleges any evidence to substantiate the so-called 'minimally ambiguous' intent of the parties to invoke arbitration and to contradict the clear terms of the parties fully signed and executed Arbitration Agreement."
¶ 13 In reply, plaintiff argued that the record supported plaintiff's contention that "she never saw Defendant's 'modified' document, must less received it" and that, at a minimum, there was "an ambiguity, given that there are two contradictory documents."
¶ 14 On August 27, 2021, the trial court entered a written order stating that it (1) had held a hearing on plaintiff's motion to reconsider, (2) was "duly advised in the premises," and (3) was denying plaintiff's motion, "for reasons stated on the record." Unfortunately, the record does not contain a transcript from the hearing or an acceptable substitute.
¶ 15 This timely appeal followed.
¶ 16 II. ANALYSIS
¶ 17 The issue on appeal is whether the trial court erred in granting defendant's motion to dismiss and compel arbitration. Plaintiff raises the identical arguments that she advanced in her motion for reconsideration.
¶ 18 "Generally, the standard of review of an order granting or denying a motion to compel arbitration is whether the trial court abused its discretion." Federal Signal Corp. v. SLC Technologies, Inc., 318 Ill.App.3d 1101, 1105 (2001). However, where the facts are not in dispute and the trial court determines arbitrability as a matter of law, we review that decision de novo. Id. at 1105-1106. At a hearing on a motion to compel arbitration, the only issue before the trial court is whether an agreement exists to arbitrate the dispute in question. Board of Managers of the Courtyards at the Woodlands Condominium Ass'n v. IKO Chicago, Inc., 183 Ill.2d 66, 70-71 (1998).
¶ 19 Agreements to arbitrate are favored at both the state and federal level. QuickClick Loans, LLC v. Russell, 407 Ill.App.3d 46, 52 (2011). "The parties to an agreement are bound to arbitrate only those issues which by clear language and their intentions expressed in the language show they have agreed to arbitrate." Rauh v. Rockford Products Corp., 143 Ill.2d 377, 387 (1991)." [A] rbitration agreements, as creatures of contract, are construed under ordinary principles of contract law." Keefe v. Allied Home Mortgage Corp., 2016 IL App (5th) 150360, ¶ 10. Thus, the primary objective is to give effect to the parties' intent. Id.
¶ 20 Plaintiff argues that, because the box in the Buyer's Order was unchecked, the record does not show a" 'clear intent'" to submit the dispute to arbitration. In a footnote, plaintiff acknowledges defendant's copy of the Buyer's Order, in which the box was checked. Plaintiff states that the two copies" create[ ] yet another ambiguity: now there are two boxes in the record, one checked, and another unchecked." This analysis, though relegated to a footnote, takes the proper approach. Contrary to the analysis in the main text of plaintiff's brief, it would be shortsighted to consider only plaintiff's version of the Buyer's Order in determining whether the parties' intent as to the Arbitration Agreement is ambiguous. Instead, we consider the two competing Buyer's Orders-defendant's version, which specifically incorporated the Arbitration Agreement, and plaintiff's version, which did not.
¶ 21 Plaintiff argues that" [t] he correct finding must be that the contract is minimally ambiguous with respect to the intent to invoke arbitration." According to plaintiff, the court must construe this ambiguity against defendant as the drafter. "However, we will resort to this doctrine, known as contra proferentem, only if we fail to ascertain the intent of the parties using ordinary principles of contractual interpretation." Premier Title Co. v. Donahue, 328 Ill.App.3d 161, 165-166 (2002). In other words, it is a doctrine of" 'last resort.'" Id. at 166 (quoting Bunge Corp. v. Northern Trust Co., 252 Ill.App.3d 485, 493 (1993)).
¶ 22 Here, in determining the parties' intent, the trial court applied the "long-standing principle that instruments executed at the same time, by the same parties, for the same purpose, and in the course of the same transaction are regarded as one contract and will be considered together." See Gallagher v. Lenart, 226 Ill.2d 208, 233 (2007). It found that the clear terms of the Arbitration Agreement resolved any ambiguity regarding the parties' intent to submit to arbitration. We agree. Plaintiff does not dispute the trial court's finding that "she signed the [Arbitration [A]greement on the same day, contemporaneous with signing the contract." The Arbitration Agreement makes clear that the parties agreed to arbitrate" [a] ny and all past, present, and future transactions and agreements between you and me in which I am or may become obligated to you and all related documents." The clear terms of the Arbitration Agreement resolve any ambiguity as to whether the parties intended to subject the transaction to the Arbitration Agreement.
¶ 23 In her reply brief, plaintiff argues that "[t]o the extent Defendant decided to bind her to arbitration by checking the box after she left (with the unchecked box document in her hand), this attempt was procedurally unconscionable, and bound her to nothing." Plaintiff raises this argument for the first time in her reply brief and, thus, has forfeited it. See Ill. S.Ct. R. 341 (h) (7) (eff. Oct. 1, 2020) ("Points not argued are forfeited and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.")
¶ 24 III. CONCLUSION
¶ 25 For the reasons stated, we affirm the judgment of the circuit court of Du Page County.
¶ 26 Affirmed.