Webster v. Hartman
722 N.E.2d 266
Ill. App. Ct.
1999
Check Treatment

*1 WEBSTER, Plaintiff-Appellant, HARTMAN, ROBERT EUGENE v. EDWIN

Defendant-Appellee. Fourth District No. 4 — 99—0006 Argued August Opinion Rehearing filed December 1999. 1999. January 24, denied

COOK, EJ., dissenting. (argued), Miller, Michael J. Costello Springfield, Costello & lant.

Karen L. Craig (argued), Kendall and L. Heyl, Royster, Unrath both of Allen, Peoria, Voelker & Koepke, Heyl, and Kurt Royster, M. Voelker & Allen, Springfield, appellee. JUSTICE STEIGMANN delivered the opinion of the court: In February plaintiff, Eugene Webster, Robert sued defen- dant, injuries Edwin he sustained when Hartman rear- Illinois, February him at a 1992. A Springfield,

ended intersection [s]ettled.” docket states: Hartman “Mase Following subsequently filed a motion to enforce settlement. motion, on Hartman’s the trial court allowed order, argu- appeals dismissed the case. Webster settle; his attorney agreed neither he nor ruling. on a pretrial court erred We affirm. challenge

When with a to the trial court’s determina tion that a settlement unless the court’s reverse *2 is, against weight conclusion is the manifest of the evidence—that un opposite clearly less an conclusion evident. re Estate Glass of 102, 107, 666, Here, man, 257 Ill. App. 3d 628 N.E.2d 670 (1) neither record before contains a settlement, bystander’s a hearing on the motion to enforce nor agreed pursuant Supreme or an of filed Court report statement facts 323(c) (d). (d). 323(c), Ill. 2d and 166 Rs. Rules a error a court of

To determine whether claimed it a Foutch v. review must have before record of below. 389, 391, 958, appel 99 Ill. 459 N.E.2d 959 O’Bryant, 2d sufficiently complete lant bears the burden to a and record incomplete court will doubts that arise from an resolve Foutch, at appellant. 99 Ill. 2d at 459 N.E.2d against “it be that the appeal, Absent a sufficient record on or conformity in law and had a der entered with Foutch, sufficient factual basis.” 99 Ill. 459 N.E.2d of the trial propriety In this are asked to review we action on Hartman’s motion to enforce settlement. court’s the trial court through examination of the common-law that However, we have no record of the on the motion. for the that nor do we know the basis hearing, evidence at the court the motion. only know that allowed trial court’s decision. We finding— court’s holding have no basis that We therefore weight of the against the manifest that a settlement occurred —was evidence, ruling appropriate. As and we the trial court’s presume Ltd., Enterprises, in Palanti v. Dillon explained the court by an 58, 66, “[arguments ap made 3d not contained in the record are depend on facts are pellant an court also wrote that appeal.” Palanti not sustainable complete reviewing court with has pellant incomplete from an record arising appeal, doubts record “ Further, issues which against appellant. ‘those resolved affir in mandate upon for resolution ” facts depend quoting at 707 N.E.2d at Palanti, mance.’ Processors, Ltd., Mining, & Inc. US. Minerals v. Licensed Chairse, 428, 434, Hubeny see also N.E.2d 1038, 1046, (any doubts arising incompleteness against from the of the record must be resolved Jacobs, appellant); re Estate of (1989) (affirmance 502, 504 is dictated when crucial facts are omitted record). from the dispute does propriety

before us is not sufficient to enable us to Thus, trial court’s action on Hartman’s motion to enforce settlement. implicit requirement the dissent as the lee, have assumed the burden of a complete somehow be appellate submitted court once Hartman became Webster, Yet, appellant, aware as had failed to do so. before a requirement is imposed, this situation must be considered from the point view of When he appellant’s counsel. received brief based, this case and the “record” which upon it is counsel could appropriately deficient, have concluded that because the record is so the appellate reject court would appellant’s ground nothing court has before it which to reverse circumstances, the trial court. Under these no difficulty believ- Supreme attorney, Court Illinois rules precedent, reasonably the burden and expense preparing bystander’s report not fall upon does him and his client. *3 accurately describes the rules regarding the burden of proof when a trial court determines' whether a case has settled. However, implies the party dissent proof with the burden of trial the court also has the burden the record on appeal establish that the proof burden of met. disagree. was Regardless of court, where burden proof lie in the trial court, this of providing burden a sufficient to trial establish court error lies with always party claiming who is trial court erred.

Unless the record before affirmatively provides some to reason contrary, to conclude court know the law governing settlements it at the properly applied December hearing. Because record before us contains no basis normally which we can presumption accorded to the apply, trial court we affirm. issue, of our conclusion on Web- this we decline other claim

ster’s of error. reasons, foregoing judgment. For the we affirm the trial court’s Affirmed. J.,

KNECHT, concurs. COOK, dissenting: PRESIDING JUSTICE matter, I do preliminary “dispute As a before us enable us to the propriety is not sufficient to the trial court’s action on Hartman’s motion enforce settlement.” Ill. App. disbarred, attempt Did now this plaintiffs lawyer, to settle case receiving ruling? after an plaintiffs without consent adverse Where made out of there is alleged settlement bound, accordingly op did not and is unless the client consent authority. ponent affirmatively express establishes Brewer National 100, 105-06, Passenger 165 Ill. 2d Corp., R.R. open

Defendant where a is made in court argues that settlement authority Szymkowski there to settle. is that was App. Szymkowski, (oral

Glassman, 3d at 628 N.E.2d at 668 settle Ill. formally agreement, spread questioned ment terms court record, however, parties). There is that this settle no indication part made a ment was made in court. The settlement was not “[cjase The is not judgment. entry [s]ettled” of a docket order at 460. The formally terms of record. 309 spreading plaintiff present record does not indicate “[cjase made. 309 Ill. 3d at 460. when the Mettled” plaintiff on December Nor was attorneys reporter a court granted. settlement was The enforce Plaintiff but no record was made. did were December states, “We any majority on December 7. not call witnesses the common-law through examination of 460. That is on the motion.” 309 hearing” “cause simply recites called incorrect. court’s order argument There is no indication that and “motion allowed.” Brewer, did not have the rate, plaintiffs At under made. by any argument power to confess this issue People like This is another case insinuate that appellee seeks to where *4 and that occurred in the trial court

something outside the record “something” is included pellant should lose because According way knowing have no record. brief “we at the what or admissions were made before trial court attorneys, on the do hearing motion to enforce.” Defendant’s place, during took on December 7 and the settlement know what both inquiries process. apply applies The same rule should here which regarding prior good-faith required; statements: a basis is inconsistent Fiorita, improper. People innuendos or insinuations Risch, N.E. Boyce A question similar issue was addressed where the particular judge assigned beginning running 10-day of the period judge. automatic substitution of appellant faulted or providing bystander’s report on the motion for substitution judge. McDuffee, N.E.2d at 535. The supreme assignment court reversed. “There is no rule of order or practice governing assignments contained in record. order, assignment absence of an official must assume People McDuffee, there was none.” applies

same rule here. There is no indication this record that a settlement was made in court. the absence of indica tion, we must assume in open no settlement was made court.

The record that plaintiff indicates not in either or on December 7. that an does not have authority to settle a is designed protect client’s case the client. We should not allow that to be diluted overly expansive application of the the appellant rule that has the prepare or by a defendant’s insinuation something unsupported by have occurred.

I judgment would reverse the of the trial court and remand further proceedings. judicial economy, In the interests of I also plaintiffs argument that the trial court abused its discretion in granting plaintiffs opinion testimony. defendant’s to bar