McCarty v. Weatherford

• Decision Date: 30 November 2005
• Docket Number: No. 4-04-1045.,4-04-1045.
• Citation: McCarty v. Weatherford, 838 N.E.2d 337, 362 Ill.App.3d 308 (Ill. 2005)
• Parties: John McCARTY and Victoria McCarty, Plaintiffs-Appellants, v. Jim WEATHERFORD; Imperial Designs, Inc., an Illinois Corporation; Imperial Sign Company; Springfield Properties, Inc.; Lynn Crites, Individually; Esther Lausen, Individually; and Raynor Hotel Company, a Delaware Corporation Qualified in Illinois, Defendants-Appellees, and Holiday Inns, Inc., a Tennessee Corporation Qualified in Illinois, d/b/a Crowne Plaza Hotels and Resorts; and Wai Architects, Inc., a Delaware Corporation, Formerly Known as Fischer-Wisnoski, Defendants.
• Court: Illinois Supreme Court

838 N.E.2d 337

John McCARTY and Victoria McCarty, Plaintiffs-Appellants, v. Jim WEATHERFORD; Imperial Designs, Inc., an Illinois Corporation; Imperial Sign Company; Springfield Properties, Inc.; Lynn Crites, Individually; Esther Lausen, Individually; and Raynor Hotel Company, a Delaware Corporation Qualified in Illinois, Defendants-Appellees, and Holiday Inns, Inc., a Tennessee Corporation Qualified in Illinois, d/b/a Crowne Plaza Hotels and Resorts; and Wai Architects, Inc., a Delaware Corporation, Formerly Known as Fischer-Wisnoski, Defendants.

No. 4-04-1045.

Appellate Court of Illinois, Fourth District.

November 4, 2005.

Rehearing Denied November 30, 2005.

Warren E. Danz, Carissa A. Mahr (argued), Warren E. Danz, P.C., Peoria, for John McCarty, Victoria McCarty.

Paul Bown (argued), Emmet A. Fairfield, James L. Nichelson, Brown, Hay & Stephens, LLP, Springfield, for Jim Weatherford, Imperial Designs, Inc., Imperial Sign Company.

James R. Branit, Bullaro & Carton, P.C., Chicago, for Springfield Properties, Inc., Lynn Crites, Esther Lausen, Raynor Hotel Co.

Justice STEIGMANN delivered the opinion of the court:

In August 1999, plaintiffs, John McCarty and his wife, Victoria McCarty, filed a third-amended complaint against defendants, Jim Weatherford, Imperial Designs, Inc., Imperial Sign Company, Springfield Properties, Inc., Lynn Crites, Esther Lausen, Raynor Hotel Company, Holiday Inns, Inc., d/b/a Crowne Plaza Hotels & Resorts, and WAI Architects, Inc., seeking to recover for (1) injuries John suffered while installing a rooftop sign during the construction of the Crowne Plaza Hotel and Resort in Springfield and (2) Victoria's loss of consortium. In February 2004, the trial court granted summary judgment in favor of Raynor Hotel, Springfield Properties, Crites, and Lausen (collectively the Raynor defendants). In August 2004, the court granted summary judgment in favor of Weatherford, Imperial Designs, and Imperial Sign (collectively the Weatherford defendants).

The McCartys appeal, arguing that the trial court erred by granting summary judgment in favor of the Raynor and Weatherford defendants. Because the McCartys, through their attorneys, have failed to provide this court with a sufficiently complete record on appeal, we affirm the court's summary-judgment orders.

I. BACKGROUND

In August 1999, the McCartys filed their third-amended, 18-count complaint against defendants, including the owner of the Crowne Plaza, the architect of the Crowne Plaza construction project, and others involved in the Crowne Plaza construction project and the installation of a canvas sign on top of the Crowne Plaza. The McCartys sought to recover for (1) severe leg injuries John suffered when he fell from a scaffold while installing the rooftop sign in July 1997, and (2) Victoria's loss of John's consortium.

In January 2000, the trial court dismissed with prejudice the counts against WAI Architects. In June 2001, the McCartys voluntarily dismissed Holiday Inns as a defendant. From July 2001 until May 2003, the parties conducted discovery the trial judge recused himself due to a conflict of interest, another judge was assigned to the case, and the McCartys filed a motion to substitute that judge. (The record does not show that the motion to substitute judge was ever ruled upon.)

In May 2003, the Raynor defendants filed a motion for summary judgment. In February 2004, the trial court entered a written order granting summary judgment in their favor, upon determining that the Raynor defendants exercised no control over the work or the incidental aspects of the work John performed at the Crowne Plaza.

In March 2004, the Weatherford defendants filed a motion for summary judgment, arguing that Weatherford and Imperial Designs were entitled to immunity under the Workers' Compensation Act (820 ILCS 305/1(a)(4) (West 2002)) because Imperial Designs had loaned Weatherford, who was an Imperial Design employee, as an employee to Siciliano Construction, the general contractor for the Crowne Plaza construction project. In August 2004, the trial court granted summary judgment in the Weatherford defendants' favor.

This appeal followed.

II. ANALYSIS

A. Summary Judgments and the Standard of Review

Summary judgment is proper "where the pleadings, affidavits, depositions, admissions, and exhibits on file, when viewed in the light most favorable to the nonmovant, reveal that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Busch v. Graphic Color Corp., 169 Ill.2d 325, 333, 214 Ill.Dec. 831, 662 N.E.2d 397, 402 (1996); see 735 ILCS 5/2-1005(c) (West 2004). Although summary judgment is a "drastic measure," it is appropriate for expeditiously disposing of a lawsuit "`when the right of the moving party is clear and free from doubt.'" Morris v. Margulis, 197 Ill.2d 28, 35, 257 Ill.Dec. 656, 754 N.E.2d 314, 318 (2001), quoting Purtill v. Hess, 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867, 871 (1986). We review de novo the trial court's grant of summary judgment. Harrison v. Hardin County Community Unit School District No. 1, 197 Ill.2d 466, 470-71, 259 Ill.Dec. 440, 758 N.E.2d 848, 851 (2001).

B. The Evidentiary Material Before the Trial Court and Before This Court

On appeal from a trial court's grant of summary judgment, a reviewing court must first ask two questions: (1) What evidentiary material did the trial court have before it when it granted summary judgment? and (2) Does the reviewing court have all of that evidentiary material before it on appeal? To assist the reviewing court, the better practice for the trial court would be to specifically indicate all of the evidentiary material the court considered in granting summary judgment. That way, the reviewing court is not left to surmise what evidentiary material was before the trial court both in support of, and in opposition to, the motion for summary judgment. A trial court's specifying all the evidentiary material it considered in granting summary judgment is consistent with the rule that evidentiary material never considered by the trial court in a summary-judgment proceeding will not be considered on review. Paul H. Schwendener, Inc. v. Jupiter Electric Co., 358 Ill.App.3d 65, 77, 293 Ill.Dec. 893, 829 N.E.2d 818, 830 (2005). Unfortunately, the trial court here did not specifically set forth the evidentiary material it considered when it granted summary judgment for each group of defendants. Instead, in granting summary judgment in the Raynor defendants' favor, the court simply stated that it had heard the parties' arguments and "considered the [m]otions and [m]emorandums filed on behalf of the parties." In granting summary judgment in favor of the Weatherford defendants, the court stated that it had done so "[b]ased upon the facts in the record."

We have reviewed the parties' briefs, the record, and the supplement to the record that we allowed the Weatherford defendants to file. Based thereon, we have determined (as best we can) what evidentiary material was before the trial court when it granted defendants' summary-judgment motions, as well as what evidentiary material is now properly before this court.

We note that when the McCartys filed their brief with this court, they also included what they referred to as an "appendix." The "appendix" consisted of a box of over a thousand papers, many of which were not included in the record on appeal. Although the documents were numbered and bound in two volumes, they did not have a cover sheet or an index identifying the documents or their purpose. The McCartys simply "deposited" the documents with the clerk of our court and left it up to the clerk's office to make sense of them. It is well settled that the record on appeal cannot be supplemented by attaching documents to a brief or including them in an appendix. In re Parentage of Melton, 321 Ill.App.3d 823, 826, 254 Ill.Dec. 845, 748 N.E.2d 291, 294 (2001); see Denny v. Haas, 197 Ill.App.3d 427, 430, 143 Ill.Dec. 792, 554 N.E.2d 727, 729 (1990) ("attachments to briefs which are not otherwise of record are not properly before a reviewing court and cannot be used to supplement the record"); see, for example, Geary v. Telular Corp., 341 Ill.App.3d 694, 697 n. 1, 275 Ill.Dec. 648, 793 N.E.2d 128, 130 n. 1 (2003) (in which the appellate court refused to consider a memo that was contained only in the appendix to the plaintiff's brief and was not a part of the record on appeal); Clay v. County of Cook, 325 Ill.App.3d 893, 896 n. 2, 259 Ill.Dec. 526, 759 N.E.2d 6, 9 n. 2 (2001) (in which the appellate court refused to consider affidavits that were only included in the appendix to the party's brief and were not in the record on appeal); Smith v. First National Bank of Danville, 254 Ill.App.3d 251, 258, 191 Ill.Dec. 711, 624 N.E.2d 899, 905 (1993) (in which this court granted the appellee's motion to strike portions of the appellant's reply brief that attached and discussed a settlement agreement that was not part of the record on appeal); People v. Henderson, 136 Ill.App.3d 1041, 1045, 91 Ill.Dec. 582, 483 N.E.2d 1068, 1070 (1985) (in which this court refused to consider a document the defendant attached to the appendix of his brief, upon determining that the document was not in the record); see also Berdelle v. Carpentier, 11 Ill.2d 295, 298, 143 N.E.2d 53, 55 (1957) (in which the supreme court refused to consider a transcript attached to a party's petition for rehearing because it was not part of the record on appeal). Because parties cannot use briefs and appendices to supplement the record, we ignore the documents contained in the McCartys' appendix.

The dissent suggests that pursuant to Supreme Court Rule 329 (134 Ill.2d R. 329), this court should "enter an order allowing the two bound volumes to supplement the record." 297 Ill.Dec. at 859, 838 N.E.2d at 346. The dissent correctly points out that Rule 329...