Salazar v. Wiley Sanders Trucking Co., Inc.

• Decision Date: 26 July 1991
• Citation: 159 Ill.Dec. 883,216 Ill.App.3d 863,576 N.E.2d 552
• Parties: , 159 Ill.Dec. 883 Eloy SALAZAR et al., Plaintiffs-Appellants, v. WILEY SANDERS TRUCKING COMPANY, INC., Defendants-Appellees. 2-90-0927.
• Court: United States Appellate Court of Illinois

Page 552

576 N.E.2d 552

216 Ill.App.3d 863, 159 Ill.Dec. 883

Eloy SALAZAR et al., Plaintiffs-Appellants, v. WILEY SANDERS TRUCKING COMPANY, INC., Defendants-Appellees.

2-90-0927.

Appellate Court of Illinois,

Second District.

July 26, 1991.

Allen L. Ray, Ray, Rizowy & Fleischer, Chicago, for Eloy and Elva Salazar.

Gary W. Klages, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Waukegan, D. Kendall Griffith, Joshua G. Vincent, Gary J. Bazydlo (argued), Hinshaw & Culbertson, Chicago, for Wiley Sanders Trucking Co. and Eddie K. Blair. Justice NICKELS delivered the opinion of the court:

Plaintiffs, Eloy and Elva Salazar, appeal from a July 24, 1990, order of the circuit court of Lake County which denied their section 2-1301(e) motion of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-1301(e)) and section 2-1401 petition of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-1401) to vacate a November 22, 1988, order which dismissed their personal injury complaint against defendants, Wiley Sanders Trucking Company and Eddie K. Blair, for want of prosecution. The issues raised on appeal are whether the trial court erred in denying the section 2-1301(e) motion and whether the trial court abused its discretion in denying the section 2-1401 petition.

On July 19, 1988, plaintiffs filed a complaint against defendants which alleged that on July 19, 1986, Blair, as an agent of Sanders Trucking engaged in his employment duties, fell asleep and his five-axle freight liner vehicle overturned, blocking two lanes of traffic. Plaintiffs' vehicle struck the freight liner, and they suffered injuries as a result. Plaintiffs also alleged that Sanders Trucking negligently entrusted the vehicle to Blair. David Z. Feuer represented plaintiffs and filed the complaint.

Pursuant to defendants' section 2-615 motion to dismiss, the court dismissed plaintiffs' complaint on September 30, 1988, and allowed plaintiffs 21 days to file an amended complaint. (Ill.Rev.Stat.1987, ch. 110, par. 2-615.) However, on November 22, 1988, the cause was dismissed for want of prosecution (DWP order) on the court's own motion. No amended complaint was ever filed.

On December 21, 1988, Feuer filed a section 2-1301(e) motion to vacate the DWP order. (Ill.Rev.Stat.1987, ch. 110, par. 2-1301(e).) The motion was set for hearing on December 30, 1988.

Nothing further appears in the record until April 25, 1990, when plaintiffs filed a section 2-1401 petition to vacate the DWP order. (Ill.Rev.Stat.1987, ch. 110, par. 2-1401.) The petition was filed by attorney Allen L. Ray of the law firm where Feuer was formerly employed. The petition alleged that from the time plaintiffs' case was brought to the firm in July 1986 and all relevant times thereafter Feuer had complete responsibility for plaintiffs' case. It was alleged on "information and belief" that Feuer did not appear at defendants' motion to dismiss. It provided that Feuer failed to file an amended complaint. The petition also alleged that while Feuer filed a section 2-1301(e) motion to vacate the DWP order, he failed to present the motion to the court "[f]or reasons unknown then and now" and the motion was stricken.

The petition also alleged that Feuer never advised members of the law firm that the cause was DWP'd, but told them after December 30, 1988, that the matter was pending. Feuer resigned on July 31, 1989, and later informed the firm that he was suffering from medical depression and was under psychiatric care. "Upon information and belief" Feuer was alleged to be incapacitated while this case was in his control. The petition was accompanied by Ray's affidavit and plaintiff Eloy's affidavit which provided that he communicated with Feuer from time to time and was told the matter was progressing and discovery was pending.

Defendant filed a motion to dismiss plaintiffs' section 2-1401 petition. However, plaintiffs filed an amended motion on June 13, 1990, which sought a ruling on Feuer's section 2-1301(e) motion to vacate the DWP order filed December 21, 1988, which plaintiffs now alleged was still pending as no order was ever entered on it. The motion incorporated by reference the previous section 2-1401 petition. Alternatively, plaintiffs again sought to vacate the DWP order by a section 2-1401 petition. Ray's affidavit with the amended motion stated that letters from defendants' attorney dated June 1, 1989, regarding rescheduling of depositions until early October 1989 were in Feuer's file. No other information in the file showed the disposition of Feuer's section 2-1301(e) motion. Defendants filed a motion to dismiss plaintiffs' amended motion.

The matter was set for a hearing on July 20, 1990. Plaintiffs filed an affidavit by Roneen Blank, M.D., a psychiatrist, which provided that Blank treated Feuer from October 1989 through April 1990. Feuer was diagnosed with an adjustment disorder with depressed mood. In Blank's professional opinion it was "highly likely" that Feuer suffered from this condition since at least early 1988.

Following a hearing at which no court reporter was present according to plaintiffs, the court denied plaintiffs' section 2-1301(e) motion and section 2-1401 petition. The July 24, 1990, order provided that: the December 21, 1988, section 2-1301(e) motion to vacate the DWP order was stricken on December 30, 1988, and was not pending; the parties stipulated that this motion had been stricken; in any event, if it were still pending it was stale and should be denied; Dr. Blank's affidavit was inadequate because it failed to show that Feuer suffered from a mental illness or was being treated prior to July 31, 1989; and nine months elapsed between Feuer's resignation and the filing of the section 2-1401 petition which showed lack of due diligence.

Plaintiffs initially contend the trial court's finding that the section 2-1301(e) motion was stricken on December 30, 1988, is incorrect because there is no basis in the record to support the finding. They also claim that they never stipulated that the motion had been stricken. Defendants argue that plaintiffs have supplied an inadequate record, and doubts must be resolved against them as appellants. (Foutch v. O'Bryant (1984), 99 Ill.2d 389, 76 Ill.Dec. 823, 459 N.E.2d 958.) In reply plaintiffs point out that the record is nonexistent for any proceeding on December 30, 1988, because Feuer was not present in court.

While plaintiffs have offered an explanation for the lack of supplying a record for December 30, 1988, they have failed to submit to this court a report of proceedings or its substitutes as provided in Supreme Court Rule 323 (134 Ill.2d R. 323) for the hearing held on their amended motion on July 20, 1990. (Marshall E. Winokur, Ltd. v. Shane (1980), 89 Ill.App.3d 551, 552-53, 44 Ill.Dec. 776, 411 N.E.2d 1142.) According to the July 24, 1990, order, counsel were present, arguments were heard, and the court was "advised in the premises," and yet plaintiffs have not furnished any form of a record for this proceeding. An appellant has the duty to present a complete record on appeal, and in the absence of an adequate record, it will be presumed that the trial court's judgment conforms to the law and has a sufficient factual basis. (Lakeland Property Owners Association v. Larson (1984), 121 Ill.App.3d 805, 808, 77 Ill.Dec. 68, 459 N.E.2d 1164.) The July 24, 1990, order states the parties stipulated that the motion was stricken on December 30, 1988, and since plaintiffs have failed to supply a record for the proceeding in which such a stipulation may have occurred, we resolve any doubt against plaintiffs as appellants. (In re Estate of Jacobs (1989), 189 Ill.App.3d 625, 629, 136 Ill.Dec. 978, 545 N.E.2d 502.) Plaintiffs' contention in their reply brief that defendants had an opportunity to supplement the record to show a stipulation is not persuasive as it was incumbent upon plaintiffs as the party seeking to have the judgment reviewed to present a record of proceedings to show the errors from which they complain. ( Jacobs, 189 Ill.App.3d at 629, 136 Ill.Dec. 978, 545 N.E.2d 502; In re Custody of Caruso (1989), 185 Ill.App.3d 739, 743, 134 Ill.Dec. 196, 542 N.E.2d 375.) A party cannot generally dispute stipulated matters on appeal. Dawdy v. Sample (1989), 178 Ill.App.3d 118, 127, 127 Ill.Dec. 299, 532 N.E.2d 1128.

Plaintiffs also make the unsubstantiated statement in their brief that a "chance call" to the clerk's office in April 1990 gave them notice that no order had been entered on the section 2-1301(e) motion. Assertions in an appellant's brief cannot substitute for a proper record. (In re Marriage of Partyka (1987), 158 Ill.App.3d 545, 557, 110 Ill.Dec. 499, 511 N.E.2d 676.) The record does not indicate any evidence which was presented to the trial court to support this statement such as half sheets or other records from the clerk's office or even an affidavit. We will not consider this statement as fact.

While plaintiffs have failed to present a record of the July 20, 1990, hearing, we do note that the July 24, 1990, order indicates some uncertainty on the trial court's part as to the status of the section 2-1301(e) motion on July 20, 1990. The order provided that the motion was stricken on December 30, 1988, and that the parties stipulated to that fact; however, the order further stated that if the motion was pending, it was stale and should be denied. Generally, a party cannot dispute stipulated matters on appeal (Dawdy, 178 Ill.App.3d at 127, 127 Ill.Dec. 299, 532 N.E.2d 1128), but since the end result of the trial court's order actually was to deny the section 2-1301(e) motion due to staleness, we will consider that issue on appeal.

Defendants assert that the trial court found the section 2-1301(e) motion stale and denied it pursuant to local court rules. Plaintiffs argue that the order does not refer to local court rules and there is no support for the proposition that ...