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Colmar12/4/2003
UNPUBLISHED
Plaintiff, Colmar, Ltd. (Colmar), appeals from the trial court's order dismissing its complaint seeking to vacate an arbitration award entered in favor of defendant, Fremantlemedia North America, Inc. (FMNA). Colmar argues on appeal that the trial court erred by affirming the arbitration award because (1) the arbitration award was void due to the fact that defendant was represented during the arbitration by an attorney who was not licensed in Illinois ; (2) the arbitrator exceeded his powers by refusing to hear material evidence, ruling on an issue not submitted in plaintiff's complaint, and failing to consider all of the arguments presented in plaintiff's complaint; and (3) public policy demands that the trial court vacate the award. Colmar further alleges that the trial court erred by dismissing the complaint for failure to state a claim upon which relief could be granted. We affirm the order of the court below.
Colmar is a Delaware corporation that produced and owns a feature motion picture entitled "Captive." FMNA, also a Delaware corporation, which is based in Califormia, is the wholly owned American subsidiary of a European media conglomerate that is engaged in the worldwide production and distribution of motion pictures and television programs.
In 1994, Colmar and FMNA entered into a license agreement (contract) whereby Colmar licensed its film to FMNA. The contract provided that FMNA would market the film through December 31, 2003. The contract contained an arbitration clause that provided that the parties would submit any disputes arising from the contract to arbitration, pursuant to the rules of the American Arbitration Association (AAA).
In March 2000, Colmar filed its first arbitration demand against FMNA, alleging that FMNA had breached the contract by failing to "actively and aggressively" market the film. FMNA was represented during this arbitration by its California attorney, Peter J. Anderson (Anderson) - an attorney licensed to practice in California, but not in Illinois . During the course of the arbitration, Anderson took the deposition of a Colmar witness and attended arbitration proceedings in Chicago . The arbitration concluded after nearly one year, with the arbitrator finding FMNA not liable. In an order dated February 22, 2001, the trial court confirmed the arbitration award and denied Colmar's request to vacate it. Colmar did not appeal from the trial court's order.
On August 11, 2001, Colmar filed a second arbitration complaint against FMNA. FMNA sought to dismiss the complaint, arguing that the claims it raised were the same as those previously considered in the first arbitration. Colmar argued that all evidence from the inception of the contract - or at least evidence indicating breach subsequent to the conclusion of the first arbitration - should be considered. Again, this second arbitration took place in Chicago and FMNA was represented by Anderson. On August 5, 2002, the second arbitrator denied Colmar's claims, finding as follows:
"In the First Award, after providing a detailed and reasoned analysis for his award in favor of [FMNA], Arbitrator Marinello concluded: 'This Award is in full settlement of all claims submitted to this arbitration. All claims not expressly granted herein are, herby denied.' On February 22, 2002 the Circuit Court of Cook County entered an Order confirming the First Award [Case No. 01 CH 16369].
By its election to seek relief through the Termination Date, [Colmar] has negated what might have been its ability to assert further claims under the Contract. Among the goals of arbitration are to provide a 'final and binding determination' in a fair, prompt and
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