Opinion
No. 1-17-1415
02-07-2018
MAURA ANN McBREEN, Plaintiff-Appellant, v. MERCEDES-BENZ, USA, LLC, and CONTINENTAL AG, CONTINENTAL TIRE THE AMERICAS, LLC, and MERCEDES-BENZ OF CHICAGO, Defendants (Mercedes-Benz, USA, LLC and Fletcher Jones of Chicago, Ltd., LLC, incorrectly sued as Mercedes-Benz of Chicago, Defendants-Appellees).
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 15 L 6393 Honorable Diane M. Shelley, Judge Presiding. JUSTICE HOWSE delivered the judgment of the court.
Presiding Justice Cobbs and Justice Fitzgerald Smith concurred in the judgment. ORDER ¶ 1 Held: The judgment of the circuit court of Cook County entering judgment on an arbitration award in favor of defendants is affirmed; our supreme court had authority under the Illinois Constitution to create an independent mandatory arbitration program in the Law Division of the Circuit Court of Cook County, therefore the arbitrator was authorized to enter the award and the trial court properly entered judgment on the award; the arbitration program does not violate litigants' equal protection or due process rights; and the trial court did not abuse its discretion in denying plaintiff's motion to extend the time to reject the arbitrator's award. ¶ 2 This appeal arises from a judgment on an arbitration award from mandatory arbitration in the circuit court of Cook County Law Division, Commercial Calendar Section. The arbitrator entered an award for defendants. Plaintiff failed to reject the arbitrator's award in favor of defendants within the seven-day period required by court rule for cases assigned to the Law Division Commercial Calendar Section Mandatory Arbitration Program. After expiration of the seven-day period to reject the award, plaintiff filed an untimely rejection of the award. At a hearing held a week later, defendant made an oral motion to dismiss plaintiff's complaint for failing to timely reject the arbitrator's award and for judgment on the arbitration award. Plaintiff then filed a motion seeking to find the arbitration award void or, alternatively, to extend the time to reject the award. The trial court denied plaintiff's motion and entered judgment in favor of defendants on the arbitrator's award. For the following reasons, we affirm.
¶ 3 BACKGROUND
¶ 4 Plaintiff, Maura McBreen, filed an amended complaint in the Law Division of the Circuit Court of Cook County against defendants, Mercedes-Benz, USA, LLC, and Mercedes-Benz of Chicago. Plaintiff's attorney filed an affidavit with the complaint pursuant to Illinois Supreme Court Rule 222 (eff. Jan. 1, 2011) in which he averred plaintiff was seeking damages in excess of $50,000. Pursuant to Part 25 of the Rules of the Circuit Court of Cook County, the trial court referred the matter to the Law Division Commercial Calendar Section Mandatory Arbitration Program (hereinafter Law Division Mandatory Arbitration Program) and set a date for the case to return to court for either judgment on the award or status of rejection of the award. Plaintiff did not object to proceeding with the arbitration or to any of the arbitration procedures. ¶ 5 Rule 25.1 of the Rules of the Circuit Court of Cook County (hereinafter local rules) reads as follows:
"Mandatory Arbitration will be held in those commercial cases assigned to the Commercial Calendar Section of the Law Division, including cases with self-represented or pro se litigants, with damages of less than $75,000. The arbitration hearings will take place at the Cook County Mandatory Arbitration Center, 222 N. LaSalle Street, Chicago, Illinois." Cook County Cir. Ct. R. 25.1 (Dec. 1, 2014).The matter was heard by a single arbitrator, who made an award in favor of defendants. Rule 25.11 of the local rules states: "Either party may reject the award if the rejecting party does so within seven business days after receiving the notice of the award from the Administrator. Thereafter, and on the date specified in the trial court's order of Referral To Mandatory Arbitration, the case will be returned to the trial judge for further proceedings or for the entry of judgment on the award." Cook County Cir. Ct. R. 25.11 (Dec. 1, 2014). A "Notice of Commercial Calendar Mandatory Arbitration Award" issued on November 4, 2016. On December 5, 2016, plaintiff filed a rejection of the mandatory arbitration award. Defendants made an oral motion to dismiss plaintiff's complaint on the grounds her rejection of the arbitrator's award was untimely. The trial court entered a briefing schedule, and plaintiff filed a response and cross-motion to void the mandatory arbitration award or, in the alternative, to extend the time to file a rejection of the award. ¶ 6 Plaintiff's cross-motion stated the mandatory arbitration program under Part 18 of the local rules (hereinafter "Municipal Department Mandatory Arbitration Program") is expressly governed by the supreme court rules for the conduct of mandatory arbitration, including Illinois Supreme Court Rule 93 (eff. Jan. 1, 1997). Plaintiff's motion to extend the time to file a rejection of the award stated that although plaintiff failed to timely file her notice of rejection with the time prescribed by Part 25 of the local rules governing the Law Division Mandatory Arbitration Program, she did file her notice of rejection within the time prescribed by Rule 93. Rule 93 gives a party in a Municipal Department case 30 days to file a notice of rejection of an arbitrator's award. Part 18 of the local rules read, in pertinent part, as follows:
"(a) Mandatory Arbitration proceedings are undertaken and conducted in Cook County pursuant to approval of the Illinois Supreme Court given on December 2, 1989.
(b) All actions filed in the Municipal Districts after the effective date of these rules, involving personal injury (regardless of whether a jury demand has been filed) and those actions for property damages or breach of contract in which a timely jury demand has been filed, seeking money damages only, not to exceed
THIRTY THOUSAND DOLLARS ($30,000), shall be assigned to an arbitration calendar.Plaintiff's cross-motion argued the trial court had the ability to and should treat her rejection of the arbitrator's award as timely, given the unequal treatment of litigants under the Law Division Mandatory Arbitration Program as compared to the Municipal Department Mandatory Arbitration Program. Plaintiff's cross-motion stated no reason why plaintiff did not file her notice of rejection of the arbitrator's award within the seven-day period prescribed by Rule 25.11 of the local rules governing the Law Division Mandatory Arbitration Program. ¶ 7 Defendants filed a response to plaintiff's cross-motion in which they argued the trial court must enter judgment on the arbitration award because plaintiff did not timely file a rejection of the arbitration award. Defendants also argued plaintiff's motion to extend the time to file a notice of rejection of the award must be denied because plaintiff failed to show good cause for an extension. Following a hearing, the trial court denied plaintiff's cross-motion and entered judgment on the arbitrator's award in favor of defendants. This appeal followed.
The Chief Judge may determine, from time to time, which other class or classes of cases, if any, otherwise eligible for these proceedings, shall be assigned to the arbitration calendar.
(c) Actions pending on, or filed after, the effective date of these rules seeking money damages only, having a value not exceeding THIRTY THOUSAND DOLLARS ($30,000) and determined to be eligible for mandatory arbitration by the trial court may be assigned to the arbitration calendar." Cook County Cir. Ct. R. 18.3 (Aug. 1, 2001).
Mercedes-Benz of Chicago is the business name of defendant Fletcher Jones of Chicago. Ltd., LLC.
The Illinois Supreme Court ordered a two-year pilot mandatory arbitration program for commercial cases assigned to the Commercial Calendar Section of the Circuit Court of Cook County Law Division "where the amount in controversy is $75,000 or less" to "continue on a permanent basis" and ordered the program to "continue to be administered through local rules." Ill. S. Ct., M.R. 9166 (eff. Sept. 30, 2016).
"The mandatory arbitration program of the Circuit Court of Cook County, Illinois, is governed by the Supreme Court Rules for the Conduct of Mandatory Arbitration Proceedings (Supreme Court Rules 86-95, inclusive)." Cook County Cir. Ct. R. 18.2 (Aug. 1, 2001).
"(a) Rejection of Award and Request for Trial. Within 30 days after the filing of an award with the clerk of the court, and upon payment to the clerk of the court of the sum of $200 for awards of $30,000 or less or $500 for awards greater than $30,000, any party who was present at the arbitration hearing, either in person or by counsel, may file with the clerk a written notice of rejection of the award and request to proceed to trial, together with a certificate of service of such notice on all other parties." Ill. S. Ct. R. 93 (eff. Jan. 1, 1997).
¶ 8 ANALYSIS
¶ 9 Plaintiff argues the arbitrator's award in this case is void, and consequently the trial court's judgment on that award is void, because the Law Division Mandatory Arbitration Program (1) violates sections 2-1001A and 2-1003A of the Code of Civil Procedure (Code), and (2) the local rules of the Law Division Mandatory Arbitration Program violate plaintiff's rights to equal protection and due process. Plaintiff also argues the trial court should have extended the time for filing a rejection of the arbitrator's award pursuant to Illinois Supreme Court Rule 183 (eff. Feb. 16, 2011). ¶ 10 Plaintiff's argument the Law Division Mandatory Arbitration Program violates the Code asks this court to construe the scope of the sections of the Code at issue, a task we undertake de novo. See Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100, 179 (2005) ("Because the scope of the Act is a question of statutory interpretation, our review is de novo."). Regarding plaintiff's argument the local rules are unconstitutional, "[c]ourt rules are interpreted under the same principles that guide our construction of statutes" (VC & M, Ltd. v. Andrews, 2013 IL 114445, ¶ 30), and "[w]e review the constitutionality of a statute de novo. [Citation.]" Gatz v. Brown, 2017 IL App (1st) 160579, ¶ 10. Finally,
"the plain language of Rule 183 specifically makes good cause a prerequisite to relief, and that the burden of establishing good cause rests on the party seeking relief under Rule 183. The circuit court has the sound discretion to consider all objective, relevant evidence presented by the delinquent party with respect to why there is good cause for its failure to comply with the original deadline and why an extension of time should now be granted. The circuit court may receive evidence with respect to whether the party's original delinquency was caused by mistake, inadvertence, or attorney neglect, but may not engage in an open-ended inquiry which considers conduct that is unrelated to the causes of the party's original
noncompliance. *** Absent an abuse of discretion, the decision of the circuit court on this issue will not be disturbed. [Citation.]" Vision Point of Sale, Inc. v. Haas, 226 Ill. 2d 334, 353-54 (2007).
¶ 11 (1) Section 2-1001A et seq. of the Code
¶ 12 Plaintiff argues the arbitrator's award in this case is void because the Law Division Mandatory Arbitration Program violates sections 2-1001A and 2-1003A of the Code. Section 2-1001A of the Code reads as follows:
"Authorization. The Supreme Court of Illinois, by rule, may provide for mandatory arbitration of such civil actions as the Court deems appropriate in order to expedite in a less costly manner any litigation wherein a party asserts a claim not exceeding $50,000 or any lesser amount as authorized by the Supreme Court for a particular Circuit, or a judge of the circuit court, at a pretrial conference, determines that no greater amount than that authorized for the Circuit appears to be genuinely in controversy." 735 ILCS 5/2-1001A (West 2016).Plaintiff asserts section 2-1001A of the Code is enabling legislation authorizing the creation of a mandatory arbitration system in Illinois circuit courts. Plaintiff argues that consequently, pursuant to section 2-1002A of the Code, the Supreme Court of Illinois was charged with the responsibility of implementing the mandatory arbitration system by adopting procedures to administer the program through its rulemaking authority. Section 2-1002A of the Code reads: "Implementation by Supreme Court Rules. The Supreme Court shall by rule adopt procedures adapted to each judicial circuit to implement mandatory arbitration under this Act." 735 ILCS 5/2-1002A (West 2016). As a result of that "legislative charge," plaintiff states, our supreme court adopted Illinois Supreme Court Rules 86 through 95. Plaintiff notes Rules 86 through 95 are consistent with the Code in that (a) Illinois Supreme Court Rule 86(b) (eff. Jan. 1, 1994) gives the supreme court discretion to establish a monetary limit on claims subject to mandatory arbitration that is below the overall cap of $50,000 per claim established in section 2-1001A; and (b) Illinois Supreme Court Rule 87(b) (eff. Feb. 1, 2007) states the panel of arbitrators shall consist of three members of the bar, which is consistent with section 2-1003A's requirement that "[a]rbitration hearings shall be conducted by arbitrators sitting in panels of three or of such lesser number as may be stipulated by the parties." 735 ILCS 5/2-1003A (West 2016). ¶ 13 Plaintiff argues the local rules governing the Law Division Mandatory Arbitration Program are in direct conflict with the relevant provisions of the Code and thus the program "is operating outside the parameters set by the general assembly for mandatory arbitration programs in Illinois." Plaintiff also notes the local rules for the Law Division Mandatory Arbitration Program do not reference Illinois Supreme Court Rules 86 through 95 and "fail to cite or reference any statutory authority as the basis for their promulgation." (Emphasis in original.) Plaintiff argues that giving the language of section 2-1001A its plain and ordinary meaning, it is clear the legislature intended to give the supreme court the ability to lower the maximum dollar amount for cases subject to mandatory arbitration but not to allow any court to raise the amount above the $50,000 ceiling set by the legislature. Similarly, plaintiff argues that giving the language of section 2-1003A its plain and ordinary meaning, the legislature "clearly and unambiguously requires that arbitration hearings shall be conducted by a panel of three arbitrators unless the parties stipulate to a lesser number" (emphasis omitted), which plaintiff did not do. Plaintiff argues that although the "enabling statute" directs the supreme court to adopt procedures to implement mandatory arbitration programs in Illinois, the General Assembly intended that the $50,000 ceiling on cases subject to mandatory arbitration and three-arbitrator panels "be incorporated into all mandatory arbitration programs in Illinois," and no court may override those provisions through its rulemaking authority. ¶ 14 In response defendants argue our supreme court is authorized by the Illinois Constitution to create procedural rules and, therefore, it had authority to create arbitration programs outside the strictures provided by the legislature in section 2-1001A et seq., and it did so when it created the Law Division Mandatory Arbitration Program. Defendants argue the rules governing the Law Division Mandatory Arbitration Program are procedural rules created under the court's constitutional authority and section 1-104 of the Code that are not inconsistent with section 2-1001A et seq. because they "govern two different things." Specifically, section 2-1001A et seq. governs mandatory arbitration of cases where the value of the claims is less than $50,000, and Law Division Mandatory Arbitration governs claims in excess of $50,000. Thus, in contrast to plaintiff's reading of section 2-1001A as placing a ceiling of $50,000 on any mandatory arbitration program in Illinois, defendants construe section 2-1001A as simply giving our supreme court statutory authority to create and establish minimal rules for a mandatory arbitration program for cases with claims of less than $50,000, without restricting the court's authority to create mandatory arbitration programs for cases where the claims exceed $50,000. Therefore, defendants argue, neither the statute nor the arbitration procedures in Part 18 of the local rules is relevant because the arbitration in this case was controlled by the Law Division Mandatory Arbitration Program, and not the Municipal Department Mandatory Arbitration Program which was created in Part 18 of the local rules pursuant to section 2-1001A et seq. ¶ 15 We agree the Law Division Mandatory Arbitration Program is not consistent with section 2-1001A et seq. and Illinois Supreme Court Rules 86 through 95. The rules governing the Law Division Mandatory Arbitration Program provide for mandatory arbitration of cases with claims greater than $50,000 (Cook County Cir. Ct. R. 25.1 (Dec. 1, 2014)) and for the assignment of cases to a single arbitrator (Cook County Cir. Ct. R. 25.5 (Dec. 1, 2014)). In support of her argument the court may not adopt rules for mandatory arbitration that are inconsistent with the provisions in the Code, plaintiff argues that to hold otherwise would be to render the statute superfluous and she cites the familiar rule the court "must not read a statute so as to render any part inoperative, superfluous, or insignificant; and it must not depart from the statute's plain language by reading into it exceptions, limitations, or conditions the legislature did not express." People v. Ellis, 199 Ill. 2d 28, 39 (2002). Plaintiff also relies on section 1-104(a) of the Code, which reads, in pertinent part, as follows:
"(a) The Supreme Court of this State has power to make rules of pleading, practice and procedure for the circuit, Appellate and Supreme Courts supplementary to, but not inconsistent with the provisions of this Act, and to amend the same, for the purpose of making this Act effective for the convenient administration of justice, and otherwise simplifying judicial procedure, and power to make rules governing pleading, practice and procedure in small claims actions, including service of process in connection therewith." (Emphasis added.) 735 ILCS 5/1-104(a) (West 2016).Illinois Supreme Court Rule 21 (eff. Dec. 1, 2008) similarly provides: "A majority of the circuit judges in each circuit may adopt rules governing civil and criminal cases which are consistent with these rules and the statutes of the State, and which, so far as practicable, shall be uniform throughout the State." (Emphasis added.) Therefore, plaintiff concludes, nothing in the language of section 2-1002A or Illinois Supreme Court Rule 86 "can or should be construed so as to authorize the supreme court or any other court to enact rules or take actions in derogation of or in any way inconsistent with the statute." ¶ 16 Plaintiff replies the value limitation on claims that can be subject to mandatory arbitration and the requirement for cases to be heard by a panel of three arbitrators (absent a stipulation to fewer) are "public policy determinations" concerning "the process of mandatory arbitration" for all cases. Plaintiff argues the legislature is in a superior position to the court in determining the public policy of this state, the legislature has determined the claim ceiling and three-arbitrator panels are "safeguards to which every civil litigant in the state is entitled," and, therefore, the court may not substitute its judgment on the matter for that of the legislature and "carve out a subset of litigants *** depriving them of these statutorily mandated rights." Plaintiff argues the court has rulemaking authority with respect to section 2-1001A et seq. but that authority "must be exercised within the framework of the statue and must not conflict with the substantive terms of the Act." ¶ 17 Although plaintiff argues that defendants "equate 'establishing a mandatory arbitration system' with 'drafting a procedural rule' without providing a single authoritative source to support their claim that the two are comparable," we do not find in plaintiff's argument an express refutation of the proposition that the establishment of a mandatory arbitration program is an exercise in procedural rulemaking by the court. Instead, plaintiff relies on the legislature's superior position regarding public policy as a check on the court's procedural rulemaking authority in this arena. To the extent plaintiff implies the creation of any court-annexed mandatory arbitration program is itself a matter of public policy over which the legislature has superior authority, and not a matter of court procedure, we disagree. We find mandatory arbitration procedures are rules of "practice and procedure for the circuit *** Courts *** for the purpose of *** the convenient administration of justice, and otherwise simplifying judicial procedure." 735 ILCS 5/1-104(a) (West 2016). For example, this court has noted that,
"[a]s the Committee Comments to Rule 91 state:
¶ 18 The legislature codified the power of the Supreme Court of Illinois to provide by rule for mandatory arbitration of such civil actions as the court deems appropriate wherein a party asserts a claim not exceeding $50,000. 735 ILCS 5/2-1001A (West 2016). However, our supreme court's power to make such rules emanates not from the statute but from the Illinois Constitution. People v. Cowdrey, 360 Ill. 633, 634 (1935) ("this court has inherent power to make rules governing the practice in inferior courts, independent of statutory authority") (citing People v. Callopy, 358 Ill. 11 (1934)). In Callopy, it was argued the court lacked authority to make a rule of practice for the criminal court of Cook County because that court was not listed in section 2 of the Civil Practice Act of 1933 (now section 1-104 of the Code). Our supreme court stated "we have not considered the question from the standpoint of a delegation of authority by the Legislature, preferring to determine whether this court by its own inherent powers may make rules of court binding upon inferior courts. We are convinced that, viewed both from the historical background of the power of courts of last resort and from the constitutional investiture of power, this court had, and has, power to promulgate rule 27 of the rules of this court and that rule is valid." Callopy, 358 Ill. at 22-23. See also State Farm Insurance Co. v. Gebbie, 288 Ill. App. 3d 640, 642-43 (1997). ¶ 19 In Gebbie, the trial court barred the defendant from rejecting an arbitration award in favor of the plaintiff on the grounds the defendant failed to personally appear at the arbitration hearing in violation of Illinois Supreme Court Rule 237(b) (eff. Jan. 1, 1996). "Supreme Court Rule 237(b) provides that the appearance of a party may be required by serving the party with notice which designates the person who is required to appear. [Citation.] *** Supreme Court Rule 90(g), regarding mandatory arbitration, provides that among remedies for a party's failure to comply with notice pursuant to Supreme Court Rule 237(b) is an order barring that party from rejecting the award. [Citations.]" Id. at 642. The defendant argued on appeal that the Supreme Court of Illinois exceeded its authority under section 2-1004A of the Code (735 ILCS 5/2-1004A (West 1994)) when it enacted Rule 90(g). The defendant specifically argued that "any power 'which derives its authority from the legislature is confined to the provisions within the enabling statute.' " Id. at 642. This court rejected that argument, holding "[i]t is the Illinois Constitution, however, rather than the legislature, which clearly authorizes the supreme court to promulgate procedural rules. O'Connell v. St. Francis Hospital, 112 Ill. 2d 273, 280-81 (1986)." Id. at 642-43. The Gebbie court went on to note that, additionally, the statute itself provided that our supreme court may promulgate rules and procedures for mandatory arbitration and specifically recognized our supreme court's authority under the rules to limit the right to reject an arbitrator's award. Id. at 643. Nonetheless, this court was clear in its holding that the court's power to establish rules governing mandatory arbitration came from the Illinois Constitution and was not "confined to the provisions within the enabling statute." See id. at 643 (citing O'Connell, 112 Ill. 2d at 281 ("if a supreme court rule and a statute on the same subject conflict, the rule prevails"). ¶ 20 In O'Connell, the question certified to the court presented "the issue of whether a rule of this court is in conflict with the provisions of the Code of Civil Procedure." O'Connell, 112 Ill. 2d at 280. The defendants in that case filed a motion to dismiss the plaintiff's complaint pursuant to Illinois Supreme Court Rule 103(b) (eff. July 1, 1982) before the plaintiff moved to voluntarily dismiss her complaint. Id. at 276-77. Rule 103(b) permits a party to move to dismiss a complaint with prejudice if the plaintiff fails to exercise reasonable diligence to obtain service on a defendant after the expiration of the statute of limitations. Ill. S. Ct. R. 103(b). The trial court granted the motion to voluntarily dismiss before ruling on the motion to dismiss pursuant to Rule 103(b). Id. at 278. Thereafter, the plaintiff refiled the voluntarily dismissed complaint pursuant to section 13-217 of the Code (Ill.Rev.Stat.1983, ch. 110, par. 13-217). Our supreme court described the potential conflict between Rule 103(b) and the statutory provisions giving a plaintiff the right to voluntarily dismiss his complaint without prejudice this way:'The enactment, by the legislature, establishing the procedure of mandatory court-annexed arbitration as an integral part of the juridical process of dispute resolution and the promulgation of these rules to implement such legislation compels the conclusion that its process must be utilized in arbitrable matters either to finally resolve the dispute or as the obligatory step prior to resolution by trial. To permit any party or counsel to ignore the arbitration hearing or to exhibit an indifference to its conduct would permit a mockery of this deliberate effort on behalf of the public, the bar and judiciary to attempt to achieve an expeditious and less costly resolution of private controversies.' [Citation.]" (Emphases added.) Johnson v. Saenz, 311 Ill. App. 3d 693, 697-98 (2000).
"On the one hand, our Rule 103(b) imposes a requirement of due diligence in effecting service of process. Where service of process is neither diligent nor effected within the applicable statute of limitations, Rule 103(b) permits a defendant to move for dismissal with prejudice. On the other hand, section 2-1009 of the Code allows a plaintiff to voluntarily dismiss his complaint even
where service of process is not effected until expiration of the statute of limitations governing his case. Further, section 13-217 allows a plaintiff to refile his complaint within a minimum of one year of his voluntary dismissal regardless of his lack of diligence as to the original complaint." Id. at 280.¶ 21 Our supreme court began by noting the "Illinois Constitution clearly empowers this court to promulgate procedural rules to facilitate the judiciary in the discharge of its constitutional duties." Id. at 281. "[T]he constitutional authority to promulgate procedural rules, in certain circumstances, can be concurrent between this court and the legislature." Id. But the court has not "hesitated to strike down those procedural legislative enactments which unduly infringe upon our constitutional rule-making authority." Id. The court held, "[a]pplying these principles to the instant case, *** sections 2-1009 and 13-217, as invoked by [the] plaintiff, unduly infringe upon this court's constitutional authority to regulate the judicial system of Illinois." Id. at 281. The court found Rule 103(b) was adopted to effectuate the court's mandate to render justice fairly and promptly, but when a plaintiff fails to exercise due diligence then takes a voluntarily dismissal after his diligence is challenged by a Rule 103(b) motion, and refiles, "justice is truly and unnecessarily delayed." Id. at 282. "Under such circumstances, sections 2-1009 and 13-217 constitute an undue infringement upon the judiciary as it seeks to discharge its duties fairly and expeditiously. Further, insofar as section 2-1009 directs the circuit court to dismiss a case, it unduly infringes upon the fundamental, exclusive authority of the judiciary to render judgments." Id. at 283. ¶ 22 Although neither Gebbie nor O'Connell involved rules for mandatory arbitration programs, as evidenced by the Committee Comments to Rule 91, mandatory arbitration in general is a procedure for the convenient administration of justice and to otherwise simplify judicial procedure; and our supreme court has clearly held that its procedural rules are superior to statutes on the same subject. See also People v. Peterson, 2017 IL 120331, ¶ 31 ("this court retains primary constitutional authority over court procedure. [Citation.] Accordingly, where an irreconcilable conflict exists between a legislative enactment and a rule of this court on a matter within the court's authority, the rule will prevail." (Emphasis added.)) Accordingly, plaintiff's argument the court could not adopt the rules of the Law Division Mandatory Arbitration Program in light of section 1-104 of the Code fails. Moreover, Illinois Supreme Court Rule 21 does not change the result. Our supreme court has held as follows:
"If the rules of each circuit must be consistent with every legislative enactment regarding procedure, even where the subject matter is properly within the ambit of the 'judicial power,' this duty would be totally abandoned. Rule 21(a) should be properly interpreted as requiring only that each circuit's rules be consistent with statutes that do not unduly infringe upon the 'judicial power.' " People v. Joseph, 113 Ill. 2d 36, 46-47 (1986).It is within the judicial power to create rules of procedure for the courts, and that judicial power is superior to the concurrent power of the legislature to create rules of procedure. Peterson, 2017 IL 120331, ¶ 31. ¶ 23 Further, plaintiff's reliance on Kinsley v. Kinsley, 388 Ill. 194, 198 (1944), and People v. Feinberg, 348 Ill. 549 (1932), to support her position that our supreme court's rulemaking authority in the area of mandatory arbitration is constrained by section 2-1001A et seq., allegedly because "Illinois reviewing courts in the past have invalidated local rules that either imposed limitations or placed additional burdens on litigants as compared to the requirements of corresponding statutes, or in some way abrogated or modified existing substantive law," is misplaced. The Kinsley court invalidated a local rule that contravened the substantive law in the statute to which it was addressed. See Kinsley, 388 Ill. at 197-98. In Kinsley, the Supreme Court of Illinois considered a local rule of the superior court of Cook County which required the appearance in open court of the plaintiff for a decree of divorce, which resulted in the trial court refusing to hear the plaintiff's case until he was able to appear. Id. at 195. The plaintiff was a member of the armed forces who left Chicago in April 1942 to serve the military and had not returned by November 1943 when he filed to divorce his wife who had a child with another man the previous June. Id. Our supreme court held the local rule requiring the appearance of the plaintiff for divorce in person was invalid because it "impose[d] an additional condition to the granting of a divorce in Cook county [sic]." Id. at 197. That is, the basis of the court's holding was that the local rule changed the substantive law of divorce—the court wrote:
"It is true that circuit courts and the superior courts of Cook county have the power to adopt rules and are authorized to do so by section 28 of the Circuit Court Act, Ill.Rev.Stat.1943, chap. 37, par. 72.28, which reads as follows: 'The said courts may, from time to time, make all such rules for the orderly disposition of business before them as may be deemed expedient, consistent with law.'The court found that under the statute the trial judge only had discretion to determine whether there was evidence "which satisfies him the cause for divorce has been proved by reliable witnesses in open court." Id. at 198. The court held "[t]here is no requirement of the statute that [the plaintiff] must be present and the rule in question contravenes the statute in that it limits the power of the court in the entry of a decree." Id. ¶ 24 The Kinsley court recognized the power of the court to make rules governing matters of practice and procedure and held only that rules of court must not be contrary to the substantive statutes of the state. See id. at 197-98. Kinsley, therefore, is inapposite. Since Kinsley, our supreme court has consistently held that in matters of the practice and procedures of the court, our supreme court's rules are superior to the legislature's rules. See Best v. Taylor Machine Works, 179 Ill. 2d 367, 440-445 (1997) (stating that in "O'Connell, this court reaffirmed the established principle that where a statutory procedure conflicts with a rule of this court relating to the same procedure, the rule necessarily prevails" and distinguishing cases in which the court upheld certain legislative regulations of procedure). Plaintiff's reply argument suggests a contention the legislature's creation of the mandatory arbitration program provided for by section 2-1001A et seq. is a matter of substantive law. Plaintiff asserts "the issue in this case concerns the legislature's ability to statutorily establish a mandatory arbitration system and incorporate into that system certain substantive rights of litigants which the legislature deemed necessary and fair." We reject the argument that mandatory arbitration is a substantive right of litigants. Supra, ¶ 17. "[M]andatory arbitration is a dispute resolution process under the auspices of the court." Ill. S. Ct. R. 91 (eff. June 1, 1993), Committee Comments. In fact, the validity of mandatory arbitration programs, as not being an unconstitutional violation of litigants' right to trial by jury, depends upon the ability to reject an arbitration award for any reason. See Williams v. Dorsey, 273 Ill. App. 3d 893, 904-05 (1995) (the determinative criterion of mandatory arbitration's constitutionality is the preservation of the right to a jury trial through the parties' ability to reject or appeal the award). ¶ 25 Nor is our supreme court's decision in Feinberg, 348 Ill. 549, supportive of plaintiff's position. The Feinberg court construed section 26 of article 6 of the Illinois Constitution of 1870 and determined that the jurisdiction of the criminal court of Cook County was intended to be exclusive, and that only a judge assigned to the criminal court by the judges of the circuit court of Cook County may hold a term of the criminal court. Id. at 559-60. The Feinberg court did write that the rules of the circuit court "must, of course, be consistent with the law." Id. at 556. However, the court did not identify, or resolve, a conflict between a local rule of the court and the constitution; instead, the court construed the text of the constitution, reading it as a whole, to determine its intent with regard to the court's jurisdiction. See id. at 559 ("These words mean, merely, that the criminal court shall have the same jurisdiction in all cases of criminal and quasi criminal nature as a circuit court-not the circuit court of Cook county-and of themselves do not tend to show that such jurisdiction was exclusive, but, taken in connection with the other provisions of the section, prohibiting the return of recognizances and the taking of appeals in criminal and quasi criminal cases to the circuit court, taking away the civil jurisdiction of the criminal court and making the jurisdiction exclusively criminal, all these, in the light of the action of the Constitution in omitting the provision for concurrent jurisdiction with the circuit court, clearly show that it was not the intention that the circuit court of Cook county should continue to exercise any criminal jurisdiction, but that the jurisdiction of the criminal court was intended to be exclusive."). ¶ 26 Similarly, the statement in Reed v. Farmers Insurance Group, 188 Ill. 2d 168, 175 (1999), concerning the superior position of the legislature in determining public policy, does not support plaintiff's argument that the legislature set forth inviolable guidelines for all mandatory arbitration proceedings in Illinois in section 2-1001A et seq. There was no allegedly conflicting court rule at issue in Reed. The plaintiff in that case argued the special provision in her uninsured-motorist coverage that allows parties to seek a trial de novo if the award following mandatory arbitration exceeds a certain amount violated public policy and was therefore unenforceable. Id. at 173. The Reed court noted that some foreign courts had invalidated arbitration provisions required by statute to be in uninsured motorist insurance policies on the grounds the provisions conflict with the goals or arbitration because they are nonbinding or because they were unfairly structured in favor of the insurer in that the insurer can reject large awards but the insured cannot reject small awards. Id. at 173-74. Our supreme court held "[t]he plaintiff's appeal to public policy as grounds for invalidating the arbitration provision is unavailing here, for the arbitration provision that appears in the plaintiff's insurance contract is already an expression of public policy and represents the legislature's consideration of the question." Id. at 174. In each of the cases where a court found invalid an arbitration provision allowing for rejection of an arbitrator's award over a specified threshold, the rejection provision "was inserted by the insurer without legislative "authorization; the relevant statutes in those cases did not require the presence of the provision in the insurance contract. In the present case, in contrast, the legislature has determined that uninsured-motorist coverage must contain this provision, and section 143a of the Insurance Code accordingly requires its presence in automobile policies." Id. The court concluded "we do not believe that the provision challenged here, requiring arbitration but allowing parties to reject awards in excess of a specified threshold, can be said to be violative of public policy-the provision is required by statute and appears in the plaintiff's insurance contract by virtue of legislative action." Id. at 175. Therefore, Reed is inapposite. ¶ 27 The issue in Reed was whether a statutory requirement violated public policy, not whether a legislative procedural rule, even if it did reflect policy considerations, is superior to a court procedural rule—it would not be, and nothing in Reed suggests the opposite. All of plaintiff's arguments suggesting the contrary must fail. To construe section 2-1001A et seq. in the way plaintiff suggests would render it unconstitutional as violative of the separation of powers doctrine (see Taylor Machine Works, 179 Ill. 2d at 444) and we will not construe any statute so as to render it unconstitutional. People v. One 1998 GMC, 2011 IL 110236, ¶ 20 ("this court will affirm the constitutionality of a statute if it is reasonably capable of such a determination [citation], and will resolve any doubt as to the statute's construction in favor of its validity"). Plaintiff argues "the failure of the Law Division's mandatory arbitration rules under Part 25 to abide by the strictures of the general assembly's statutory cap and three-member panel" places the Law Division Mandatory Arbitration Program "outside the boundaries of its state mandate" rendering the arbitrator's award and the trial court's judgment on that award void and without any effect. Eissman v. Pace Suburban Bus Division of the Regional Transportation Authority, 315 Ill. App. 3d 574, 578 (2000) ("decisions by a tribunal lacking *** the inherent power to enter the particular order involved, are void ab initio"). This argument fails because our supreme court had the inherent authority to create the Law Division Mandatory Arbitration Program, irrespective of section 2-1001A et seq. or Illinois Supreme Court Rules 86 through 95, and there is no argument the arbitration proceedings in this case conflicted with the pertinent local rules. The arbitrator's award and the judgment thereon are not void.
In all matters of practice and procedure, in facilitating the orderly disposition of business, the said courts have undoubted power to adopt rules governing the same, but they are without authority to change the substantive law of the land. Matters of form, of practice, of procedure and for the orderly regulation of the business of the court are all proper subjects for rules, but matters of substance which impose additional burdens upon a litigant, not contemplated by the statute, are invalid. [Citation.]" Id.
"Mandatory Arbitration will be held in those commercial cases assigned to the Commercial Calendar Section of the Law Division, including cases with self-represented or pro se litigants, with damages of less than $75,000." Cook County Cir. Ct. R. 25.1 (Dec. 1, 2014).
"Referral To Mandatory Arbitration Order-Effect: Upon receipt of the order of Referral To Mandatory Arbitration, the Administrator will randomly assign a single arbitrator qualified pursuant to Paragraph 16 herein." Cook County Cir. Ct. R. 25.5 (Dec. 1, 2014). --------
¶ 28 (2) Constitutional Claims
¶ 29 Next, plaintiff argues the rules of the Law Division Mandatory Arbitration Program violate her due process and equal protection rights. Plaintiff states the question is whether the Law Division Mandatory Arbitration Program violates the equal protection rights of litigants in the Law Division as compared with litigants in the Municipal Department of the Circuit Court of Cook County.
"The equal protection clause requires that the government treat similarly situated individuals in a similar fashion, unless the government can demonstrate an appropriate reason to treat them differently. [Citation.] The applicable level of scrutiny applied to an equal protection challenge is determined by the nature of the right impacted. [Citation.] Strict scrutiny analysis applies when a fundamental right or suspect classification based on race or national origin is involved, and requires a showing that the statute is narrowly tailored to serve a compelling state interest. [Citation.] When a recognized fundamental right or suspect classification is not implicated, this court applies the rational basis standard, requiring us to determine whether the statute bears a rational relationship to a legitimate government purpose. [Citations.] Finally, a third level of scrutiny, intermediate between strict scrutiny and the rational basis standard, applies to classifications based on gender, illegitimacy, and content-neutral incidental burdens to speech. [Citation.] Intermediate scrutiny requires a showing that the statute is substantially related to an important governmental interest. [Citation.]" People v. Masterson, 2011 IL 110072, ¶ 24."We evaluate a claim that a court rule denies a party equal protection by the same standards we use to evaluate a claim that a statute violates the equal protection clause. [Citation.]" U.S. Bank, N.A. v. Dzis, 2011 IL App (1st) 102812, ¶ 34. ¶ 30 Plaintiff claims the rules governing mandatory arbitration in the Law Division of the Circuit Court of Cook County affect her fundamental right of access to the courts, therefore strict scrutiny analysis applies, yet plaintiff makes no argument that the Law Division Mandatory Arbitration Program fails strict scrutiny. Plaintiff has forfeited any argument the Law Division Mandatory Arbitration Program fails strict scrutiny.
"Both argument and citation to relevant authority are required. An issue that is merely listed or included in a vague allegation of error is not 'argued' and will not satisfy the requirements of the rule. See, e.g., People v. Phillips, 215 Ill. 2d 554, 565 (2005) (issue forfeited where defendant raised it but failed to make any argument or citation to relevant authority); People v. Franklin, 167 Ill. 2d 1, 20 (1995) (issues forfeited where defendant provided no argument to support claims of error); People v. Guest, 166 Ill. 2d 381, 413-14 (1995) (one sentence in brief indicating that defendant 'incorporated' all claims made in earlier proceedings not sufficient to satisfy Rule 341, resulting in forfeiture of claims). Moreover, an argument that is developed beyond mere list or vague allegation may be insufficient if it does not include citations to authority. [Citation.]" Vancura v. Katris, 238 Ill. 2d 352, 370 (2010).¶ 31 Plaintiff argues that even under the less rigorous rational basis review applicable to equal protection claims that do not involve a fundamental right or a suspect class the Law Division Mandatory Arbitration Program is unconstitutional because there is no rational basis for treating litigants in the Law Division differently from litigants in the Municipal Department with regard to mandatory arbitration. "As a threshold matter, though, it is axiomatic that an equal protection claim requires a showing that the individual raising it is similarly situated to the comparison group. [Citation.] In fact, when a party fails to make that showing, his equal protection challenge fails. [Citation.]" Masterson, 2011 IL 110072, ¶ 25. Defendants argue plaintiff failed to make the required showing that she, a litigant in the Law Division with a claim for more than $50,000 but less than $75,000, is similarly situated to litigants with claims valued at less than $30,000. Defendants argue "the amount of damages sought in a civil case is a reasonable basis for application of different procedural rules." Plaintiff replies by first correctly noting that "[t]ypically, in the context of equal protection claims, a determination that individuals are similarly situated requires an analysis of the purpose of the legislation at issue." Id. Plaintiff then states the purpose of the mandatory arbitration rules in both the Law Division and the Municipal Department is to "force civil litigants who seek money damages to engage in mandatory, non-binding arbitration in order to expedite their litigation in a less costly manner." Plaintiff argues because both mandatory arbitration programs have a similar purpose, the litigants who are subject to those programs are similarly situated, but treated differently. ¶ 32 In Masterson, the statutory schemes at issue were the Sexually Dangerous Persons Act (SDPA) and the Sexually Violent Persons Commitment Act (SVPA). Id. After analyzing the procedures under both statutes and the individuals to whom the statutes apply, our supreme court concluded that "although the SDPA and the SVPA share a common goal of protecting the public from mentally disordered individuals who present a risk of sex-crime recidivism, and both potentially subject individuals to indefinite commitment, it is nonetheless apparent that they address separate groups of individuals in a manner unique to each group." Id. ¶ 37. The court found that the SDPA is concerned with individuals who have been charged with any criminal offense and suffer from a mental disorder which predisposes them to commit sex crimes, while the SVPA applies to individuals with mental disorders who have been convicted of serious sex offenses and who are facing release from custody but continue to pose a risk to commit additional sex crimes. Id. ¶ 38. "Put simply, the SDPA and the SVPA address two groups of individuals in completely different situations." The respondent in Masterson, who was committed under the SDPA, failed to demonstrate that he was similarly situated to individuals committed under the SVPA. Id. ¶ 39. The court made that determination despite the fact the two statutes at issue had similar objectives because they were directed at different categories of offenders. Id. ¶ 38 (citing People v. Burns, 209 Ill. 2d 551, 571 (2004)). ¶ 33 In this case, although the Law Division Mandatory Arbitration Program may share the same overall objectives as the Municipal Department Mandatory Arbitration Program, they are each directed at different categories of litigants. Plaintiff argues there is no rational basis for the distinctions the Circuit Court of Cook County has drawn between the two arbitration programs, but plaintiff does not argue how the litigants in those two programs, as contrasted with the goals of those two programs, are similar, other than being litigants in Cook County. "[S]imilarly situated does not mean 'identically situated.' Nevertheless, *** the comparison groups must be 'in all relevant respects alike.' [Citation.]" (Emphasis added.) In re Destiny P., 2017 IL 120796, ¶ 17. Clearly, there is a relevant difference between them, and that is in the amount of damages sought. That distinction is relevant to the manner in which their claims will be arbitrated. "As the Supreme Court has noted, equal protection 'does not forbid all classifications' [citation], '[i]t simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike.' [Citation.] Evidence of different treatment of unlike groups does not support an equal protection claim. [Citations.]" (Emphasis in original.) In re M.A., 2015 IL 118049, ¶ 25. ¶ 34 In M.A., the question was whether juveniles who were required to register under the Murderer and Violent Offender Against Youth Registration Act (Violent Offender Act) were similarly situated to juveniles required to register under the Sex Offender Registration Act (Registration Act). Id. ¶ 27. The appellate court "held that for purposes of its equal protection analysis, the appropriate class of persons is juvenile offenders who, as a result of a juvenile adjudication, are required to register with law enforcement authorities. [Citation.] In that context, the appellate court concluded that juveniles required to register as sex offenders were treated differently, and much more leniently, than juveniles required to register as violent offenders against youth. [Citation.]" Id. ¶ 27. The Supreme Court of Illinois rejected the appellate court's threshold determination that the two groups were similarly situated. After reviewing the purpose of the statutes, the court concluded "[t]he Registration Act and the Violent Offender Act address qualitatively different types of offenders and qualitatively different types of offenses. Consequently, although both juvenile sexual offenders and juvenile violent offenders are required to register under the applicable statutes, the statutes address separate groups of offenders in a manner unique to each group." Id. ¶ 32. ¶ 35 Similarly, here, plaintiff attempts to cast the comparison group as litigants required to participate in mandatory arbitration. Like our supreme court in M.A., we reject this overly broad classification of the two groups at issue. Section 2-1001A and the rules promulgated under it address litigants with claims valued at less than $30,000, while Part 25 of the local rules address, generally, claims valued between $50,000 and $75,000. These are "qualitatively different types" of litigants. Consequently, although both groups are required to participate in mandatory arbitration, the rules address separate groups of litigants in a manner unique to each group. See id. Plaintiff has failed to demonstrate that she is similarly situated to individuals participating in the Municipal Department Mandatory Arbitration Program, thus her equal protection challenge necessarily fails. "Accordingly, we need not apply the rational basis standard to [her] claim." Masterson, 2011 IL 110072, ¶ 39. ¶ 36 Plaintiff also argues that the seven day period to reject the arbitrator's award under the Law Division Mandatory Arbitration Program violates her right to procedural due process. Plaintiff argues our supreme court "has already established the length of time deemed reasonable to reject an arbitrator's award through its promulgation of Supreme Court Rule 93 which provides for a 30-day period after the filing of the award ***." Plaintiff asserts because the period in which to reject the award was unreasonably short, she was denied her right to respond to the arbitrator's decision. Plaintiff cites East St. Louis Federation of Teachers, Local 1220, American Federation of Teachers, AFL-CIO v. East St. Louis School District No. 189 Financial Oversight Panel, 178 Ill. 2d 399 (1997), in which the court found that the fundamental requirement of due process is the opportunity to he heard at a meaningful time and in a meaningful manner, in support of her argument she was not given a reasonable opportunity to respond to the arbitrator's award. East St. Louis Federation of Teachers, Local 1220, American Federation of Teachers, AFL-CIO v. East St. Louis School District No. 189 Financial Oversight Panel, 178 Ill. 2d 399, 420 (1997) (citing Matthews v. Eldridge, 424 U.S. 319, 333 (1976)). The East St. Louis court was discussing the notice requirement. The court went on to write "[n]otice is a fundamental requirement of due process. [Citation.] The notice must be reasonably calculated to apprise interested parties of the contemplated action and to afford the interested parties an opportunity to present their objections." Id. at 420. Plaintiff does not argue that the notice she received of the arbitrator's award did not inform her of the opportunity to respond. Thus, we construe plaintiff's argument to be that having seven days to reject the arbitrator's award does not afford litigants an opportunity to present their rejection of the arbitrator's award. ¶ 37 Plaintiff's only argument with regard to how much time must be given between notice and the time to respond to satisfy due process in this context is to point out that in other contexts parties are given more time and typically at least 30 days. Courts have held various periods of time for filing of less than 30 days are reasonable and not violative of due process. Chin v. Illinois Department of Public Aid, 78 Ill. App. 3d 1137, 1140 (1979) (citing Gutierrez v. Board of Review, Department of Labor, 35 Ill. App. 3d 186, 188-91 (1975) (appeal of decision by claim adjudicator of Department of Labor required to be filed within nine days of mailing or within seven days of personal service); County Treasurer and Ex Officio County Collector of Cook County v. American National Bank & Trust Co., 26 Ill. App. 3d 753, 762-65 (1975) (finding notice by publication of time during which complaints concerning tax assessments may be filed ten days before time for filing complaint terminates "reasonable and sufficient," and rejecting argument due process violated where ten day period included only seven working days due to holidays and weekends)). The same rules of construction that apply to statutes apply to Illinois Supreme Court Rules, including on questions of constitutionality. See In re Michael D., 2015 IL 119178, ¶¶ 9, 20. "Statutes are presumed constitutional, and the burden of rebutting that presumption is on the party challenging the validity of the statute to clearly demonstrate a constitutional violation." Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 306 (2008). Plaintiff has failed to establish that she did not have sufficient time in which to object to the arbitrator's award. Cf. Angelo v. Board of Review, Department of Labor, 58 Ill. App. 3d 50, 51-52 (1978) (plaintiff entitled to evidentiary hearing to determine veracity of her claim she did not receive notice of claims adjudicator's ruling until 4 p.m. on the last day for filing an appeal, which if true would violate due process). Plaintiff's due process argument fails.
¶ 38 (3) Motion to Extend Time
¶ 39 Finally, plaintiff argues that "[g]iven the *** unfair and unequal treatment of litigants under the Law Division Arbitration Program as compared to the Municipal Department Arbitration Program, the trial court had the ability and should have treated Plaintiff's filing in conformity with Supreme Court Rule 93 as valid and timely in the instant case." For the reasons explained above, Rule 93 had no application in this case. In Ianotti v. Chicago Park District, 250 Ill. App. 3d 628, 629 (1993), the plaintiff filed a notice of rejection of an arbitrator's award seven days late. The plaintiff claimed his failure to file his notice of rejection on time was the result of an inadvertent error. Id. at 630. "He argues that since he was diligent in every other aspect of the case, in the interest of justice, he should have been allowed to have a trial." Id. This court held the plaintiff "merely claimed that his failure to file within the prescribed 30-day period was a result of inadvertent error. We do not believe that it was an abuse of discretion for the trial judge to conclude that [the plaintiff's] assertion, without any further explanation, did not constitute good cause." Id. at 631. ¶ 40 In this case, plaintiff did not state minimally that her failure to reject the arbitrator's award was the result of inadvertent error. Plaintiff has offered nothing in the way of "cause" for her error except that the time limit is unconstitutional—a claim we reject—and that the "unusually short period is at trap for the unsuspecting practitioner who may not regularly practice in the Law Division ***." The latter argument is not persuasive because we will hold even pro se litigants to compliance with the rules of court. McCutcheon v. Chicago Principals Ass'n, 159 Ill. App. 3d 955, 960 (1987) ("a party's decision to appear pro se does not relieve that party from adhering as nearly as possible to the requirements of the rules of practice enunciated by our supreme court"). See also In re Flaherty, 432 B.R. 742, 752 (Bankr. N.D. Ill. 2010) ("Inadvertent failure to serve process within the time permitted does not constitute good cause. [Citations.] Further, '[f]ailure to read a rule is the antithesis of good cause. Ignorance may be an explanation but is not an excuse.' [Citations.] ' "[T]o hold that complete ignorance *** constitutes good cause for untimely service would allow the good cause exception to swallow the rule." ' [Citations.]"). Under these circumstances, we cannot say the trial court abused its discretion.
¶ 41 CONCLUSION
¶ 42 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed. ¶ 43 Affirmed.