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McCarty v. Weatherford
State: Illinois
Court: 4th District Appellate
Docket No: 4-04-1045 Rel
Case Date: 11/04/2005

NO. 4-04-1045



IN THE APPELLATE COURT



OF ILLINOIS



FOURTH DISTRICT



JOHN McCARTY and VICTORIA McCARTY,

Plaintiffs-Appellants,

v.

JIM WEATHERFORD; IMPERIAL DESIGNS,INC., an Illinois Corporation;IMPERIAL SIGN COMPANY; SPRINGFIELDPROPERTIES, INC.; LYNN CRITES,Individually; ESTHER LAUSEN,Individually; and RAYNOR HOTELCOMPANY, a Delaware CorporationQualified in Illinois,

Defendants-Appellees,

and

HOLIDAY INNS, INC., a TennesseeCorporation Qualified in Illinois,d/b/a CROWNE PLAZA HOTELS ANDRESORTS; and WAI ARCHITECTS, INC., aDelaware Corporation, Formerly Knownas FISCHER-WISNOSKI,

Defendants.

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Appeal from
Circuit Court of
Sangamon County

 

 

 

No. 98L456





 


Honorable
Leslie J. Graves,
Judge Presiding.

_________________________________________________________________

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 SignCompany, Springfield Properties, Inc., Lynn Crites, EstherLausen, Raynor Hotel Company, Holiday Inns, Inc., d/b/a CrownePlaza Hotels & Resorts, and WAI Architects, Inc., seeking torecover for (1) injuries John suffered while installing a rooftopsign during the construction of the Crowne Plaza Hotel and Resortin Springfield and (2) Victoria's loss of consortium. In February 2004, the trial court granted summary judgment in favor ofRaynor Hotel, Springfield Properties, Crites, and Lausen (collectively the Raynor defendants). In August 2004, the court grantedsummary judgment in favor of Weatherford, Imperial Designs, andImperial Sign (collectively the Weatherford defendants).

The McCartys appeal, arguing that the trial court erredby granting summary judgment in favor of the Raynor andWeatherford defendants. Because the McCartys, through theirattorneys, have failed to provide this court with a sufficientlycomplete record on appeal, we affirm the court's summary-judgmentorders.

I. BACKGROUND

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

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

In May 2003, the Raynor defendants filed a motion forsummary judgment. In February 2004, the trial court entered awritten order granting summary judgment in their favor, upondetermining that the Raynor defendants exercised no control overthe work or the incidental aspects of the work John performed atthe Crowne Plaza.

In March 2004, the Weatherford defendants filed amotion 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 ImperialDesigns had loaned Weatherford, who was an Imperial Designemployee, as an employee to Siciliano Construction, the generalcontractor for the Crowne Plaza construction project. In August2004, the trial court granted summary judgment in the Weatherforddefendants' 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, whenviewed in the light most favorable to the nonmovant, reveal thatthere is no genuine issue as to any material fact and that themovant is entitled to judgment as a matter of law." Busch v.Graphic Color Corp., 169 Ill. 2d 325, 333, 662 N.E.2d 397, 402(1996); see 735 ILCS 5/2-1005(c) (West 2004). Although summaryjudgment is a "drastic measure," it is appropriate for expeditiously disposing of a lawsuit "'when the right of the movingparty is clear and free from doubt.'" Morris v. Margulis, 197Ill. 2d 28, 35, 754 N.E.2d 314, 318 (2001), quoting Purtill v.Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871 (1986). Wereview 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, 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) Whatevidentiary material did the trial court have before it when itgranted summary judgment? and (2) Does the reviewing court haveall of that evidentiary material before it on appeal? To assistthe reviewing court, the better practice for the trial courtwould be to specifically indicate all of the evidentiary materialthe court considered in granting summary judgment. That way, thereviewing court is not left to surmise what evidentiary materialwas before the trial court both in support of, and in oppositionto, the motion for summary judgment. A trial court's specifyingall the evidentiary material it considered in granting summaryjudgment is consistent with the rule that evidentiary materialnever 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, 829 N.E.2d818, 830 (2005). Unfortunately, the trial court here did notspecifically set forth the evidentiary material it consideredwhen 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 filedon behalf of the parties." In granting summary judgment in favorof the Weatherford defendants, the court stated that it had doneso "[b]ased upon the facts in the record."

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

We note that when the McCartys filed their brief withthis court, they also included what they referred to as an"appendix." The "appendix" consisted of a box of over a thousandpapers, 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 thedocuments or their purpose. The McCartys simply "deposited" thedocuments with the clerk of our court and left it up to theclerk's office to make sense of them. It is well settled thatthe 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, 748 N.E.2d 291, 294(2001); see Denny v. Haas, 197 Ill. App. 3d 427, 430, 554 N.E.2d727, 729 (1990) ("attachments to briefs which are not otherwiseof record are not properly before a reviewing court and cannot beused to supplement the record"); see, for example, Geary v.Telular Corp., 341 Ill. App. 3d 694, 697 n.1, 793 N.E.2d 128, 130n.1 (2003) (in which the appellate court refused to consider amemo that was contained only in the appendix to the plaintiff'sbrief and was not a part of the record on appeal); Clay v. Countyof Cook, 325 Ill. App. 3d 893, 896 n.2, 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 briefand were not in the record on appeal); Smith v. First NationalBank of Danville, 254 Ill. App. 3d 251, 258, 624 N.E.2d 899, 905(1993) (in which this court granted the appellee's motion tostrike portions of the appellant's reply brief that attached anddiscussed a settlement agreement that was not part of the recordon appeal); People v. Henderson, 136 Ill. App. 3d 1041, 1045, 483N.E.2d 1068, 1070 (1985) (in which this court refused to considera document the defendant attached to the appendix of his brief,upon determining that the document was not in the record); seealso Berdelle v. Carpentier, 11 Ill. 2d 295, 298, 143 N.E.2d 53,55 (1957) (in which the supreme court refused to consider atranscript attached to a party's petition for rehearing becauseit was not part of the record on appeal). Because parties cannotuse briefs and appendices to supplement the record, we ignore thedocuments contained in the McCartys' appendix.

The dissent suggests that pursuant to Supreme CourtRule 329 (134 Ill. 2d R. 329), this court should "enter an orderallowing the two bound volumes to supplement the record." Slipop. at 19. The dissent correctly points out that Rule 329allows material omissions in the record to be corrected bystipulation of the parties or "by the reviewing court or a judgethereof" (134 Ill. 2d R. 329). Slip op. at 19. However, theparties here did not stipulate that the record should be corrected, and under the circumstances of this case, we decline toutilize Rule 329 to supplement the record.

The McCartys' attorneys did not avail themselves ofthe procedure set forth in Rule 329 by requesting that thiscourt supplement the record on appeal with the Crites andWeatherford depositions or the documentary exhibits missing fromthe record. Contrary to the dissent, we are not just now"springing" on the McCartys the fact that we would not considerthe documents in their "appendix." The McCartys were sufficiently put on notice by the Weatherford defendants' motion tosupplement the record with documents not in the record on appealand the Raynor defendants' brief. In particular, the Raynordefendants' brief (1) indicated that the record was incompletebecause it did not contain (a) the depositions of John, Crites,Weatherford, and Rick Lawrence, the owner of Siciliano Construction, and (b) several of the documentary exhibits attached tothe Raynor defendants' summary-judgment motion, and (2) arguedthat the McCartys had failed to provide an adequate record onappeal. Despite that notice, the McCartys' attorneys never madeany effort to correct the material omissions in the record. Werecognize that the clerk of the circuit court failed to filemany of the documents that were before the trial court. However, the clerk's failure does not excuse the McCartys, who, asappellants, clearly had the burden to present this court with asufficiently complete record on appeal. Webster v. Hartman, 195Ill. 2d 426, 432, 749 N.E.2d 958, 962 (2001); see generallyTechnology Solutions Co. v. Northrop Grumman Corp., 356 Ill.App. 3d 380, 385, 826 N.E.2d 1220, 1224 (2005) (regardless ofthe circuit clerk's failure to perform required tasks, theappellant has a duty to ensure that the record is in the propershape for efficient review).

In addition, our research has not revealed any Illinois decision in which a reviewing court sua sponte has corrected or amended the record under Supreme Court Rule 329. Given the circumstances of this case, we decline to be thefirst. Indeed, in the last 21 years, the Supreme Court ofIllinois has twice addressed the issue of an appellant's failureto provide a sufficient record on appeal and how such failureconstitutes a basis--without more--to affirm the trial court'sruling being appealed. See Foutch v. O'Bryant, 99 Ill. 2d 389,459 N.E.2d 958 (1984); Webster, 195 Ill. 2d 426, 749 N.E.2d 958. In either of those cases, the supreme court could have--but didnot--order, pursuant to Rule 329, that the parties provide itwith the materials from the trial court proceedings that wereabsent from the record on appeal and necessary for resolution ofthe case on the merits. In fact, neither decision contains anyhint that the supreme court ever considered taking such action. Accordingly, we decline to sua sponte supplement the record withthe documents in the McCartys' purported appendix.

We recognize that our refusal to consider the documents in the McCartys' "appendix" or sua sponte supplement therecord with those documents might seem to be a technical application of supreme court rules. See generally Gold Realty GroupCorp. v. Kismet Café, Inc., 358 Ill. App. 3d 675, 680, 832N.E.2d 403, 407 (2005) (in which Justice Warren D. Wolfson, onbehalf of a unanimous First District panel, explained thecourt's decision to reverse summary judgment for the plaintiffon a ground that might "at first blush" seem "hypertechnical"). However, the decision to take an appeal is a serious one, andthis court has the right to expect that parties (like theMcCartys) who choose to do so will pursue their appeal withdiligence and in accordance with supreme court rules. To assurethat appeals proceed in an efficient and fair manner, our supreme court has set forth rules of appellate procedure, and itis incumbent upon parties to follow them. See Keefe v. FreedomGraphic Systems, Inc., 348 Ill. App. 3d 591, 593, 810 N.E.2d189, 191 (2004) ("[S]upreme court rules have the force of law. They are not suggestions, nor are they aspirational"). Thisdoes not impose an undue burden on appellants such as theMcCartys. Indeed, over 500 civil appeals are filed in thiscourt each year, and almost all appellants are able toascertain--and comply with--the procedures set forth in supremecourt rules for providing an adequate record on appeal, inaccordance with supreme court rules.

1. Evidentiary Material Pertinent to the Raynor

Defendants' Summary-Judgment Motion

According to the Raynor defendants' brief, when theyfiled their May 2003 summary-judgment motion, they attachedthereto (1) the complete transcripts of the depositions of John,Crites, Weatherford, and Rick Lawrence, the owner of SicilianoConstruction, and (2) seven documentary exhibits (which are notfurther identified by the parties or the record). In theMcCartys' response to the Raynor defendants' motion, they reliedon the deposition transcripts of Crites and Weatherford, butthey did not attach any depositions or documents of their own. The record before us contains only a portion of the transcriptof Lawrence's deposition and, according to the Raynor defendants, one of the unidentified documentary exhibits. Eventhough the Weatherford defendants had absolutely no duty tosupplement the record to cure its deficiencies (see People exrel. Oller v. New York Central R.R. Co., 388 Ill. 382, 385, 58N.E.2d 51, 54 (1944) ("it is not the duty of the successfulparty to supply deficiencies in the record")), they did so, andtheir supplement to the record contains the full transcripts ofthe depositions of Lawrence and John. However, neither therecord before us nor the supplement contains the transcripts ofthe depositions of Crites and Weatherford. Because the recorddoes not identify the seven documentary exhibits, we have no wayof knowing whether the supplement to the record contains any ofthose documents.

2. Evidentiary Material Pertinent to the

Weatherford Defendants' Summary-Judgment Motion

The record contains the Weatherford defendants'summary-judgment motion and memorandum of law in supportthereof. Those documents indicate that the Weatherford defendants attached to their motion the following: (1) the fulltranscripts of the depositions of Lawrence, John, and Mark Hart,a Siciliano Construction employee; and (2) four documentaryexhibits--namely, (a) the McCartys' third-amended complaint, (b)the contract between Raynor Hotel and Siciliano Construction,(c) the change-of-work order requested by Raynor Hotel, and (d)the agreement between Imperial Designs and Siciliano Construction. The McCartys' response to the Weatherford defendants'summary-judgment motion relies on the agreement between ImperialDesigns and Siciliano Construction and the transcripts of thedepositions of John and Lawrence. Their response also indicatesthat they attached thereto the transcript of Weatherford'sdeposition. The record before us contains (1) the McCartys'third-amended complaint, (2) the contract between Raynor Hoteland Siciliano Construction, (3) the change-of-work order, and(4) a portion of the transcript of Lawrence's deposition. Thesupplement to the record contains (1) the agreement betweenImperial Designs and Siciliano Construction and (2) the fulltranscripts of the depositions of Lawrence, John, and Hart. Neither the record nor the supplement contains the transcript ofWeatherford's deposition.

C. The McCartys' Failure To Present a

Sufficiently Complete Record on Appeal



The McCartys argue that the trial court erred bygranting summary judgment in favor of the Raynor and Weatherforddefendants. However, the McCartys, through their attorneys,have failed to present a complete record that sufficientlyenables this court to determine whether the trial court erred bygranting summary judgment.

As this court wrote in Webster v. Hartman, 309 Ill.App. 3d 459, 460, 722 N.E.2d 266, 268 (1999),

"To determine whether a claimed erroroccurred, a court of review must have beforeit a record of the proceedings below. [Citation.] The appellant bears the burden topresent a sufficiently complete record, andthis court will resolve any doubts thatarise from an incomplete record against theappellant. [Citation.] Absent a sufficientrecord on appeal, 'it will be presumed thatthe order entered by the trial court was inconformity with law and had a sufficientfactual basis.' [Citation.]"

In Webster, 195 Ill. 2d at 432, 749 N.E.2d at 962, the supremecourt affirmed our decision and wrote, in pertinent part, asfollows:

"This court has long held that in orderto support a claim of error on appeal[,] theappellant has the burden to present a sufficiently complete record. [Foutch, 99 Ill.2d at 391-92, 459 N.E.2d at 959]. In fact,'[f]rom the very nature of an appeal it isevident that the court of review must havebefore it the record to review in order todetermine whether there was the errorclaimed by the appellant.' Foutch, 99 Ill.2d at 391[, 459 N.E.2d at 959]."

See also Schwendener, 358 Ill. App. 3d at 77, 829 N.E.2d at 830(appellant has the burden of providing the reviewing court witha complete record); Coleman v. Windy City Balloon Port, Ltd.,160 Ill. App. 3d 408, 419, 513 N.E.2d 506, 514 (1987) ("Whenportions of the record are lacking, it will be presumed that thetrial court acted properly in entry of the challenged order andthat the order is supported by the part of the record not beforethe reviewing court"); In re Estate of Jacobs, 189 Ill. App. 3d625, 629, 545 N.E.2d 502, 504 (1989) (affirmance of the trialcourt's judgment is dictated when crucial facts are omitted fromthe record).

As earlier stated, in terms of the Raynor defendants'summary-judgment motion, the record and the supplement theretocontain only (1) the transcripts of the depositions of Lawrenceand John and (2) one of the unidentified documentary exhibits. Importantly, neither the record nor the supplement contains thetranscripts of the depositions of Weatherford and Crites. Inaddition, given the state of the record, we have no way ofknowing whether the supplement contains any of the remaining sixdocumentary exhibits. Under the circumstances, we must assumethat the missing portions of the record support the trialcourt's determination that (1) no genuine issue of material factexisted and (2) the Raynor defendants were entitled to judgmentas a matter of law. See Coleman, 160 Ill. App. 3d at 419-20,513 N.E.2d at 514 (affirming the trial court's grant of summaryjudgment where the appellants failed to provide a completerecord on appeal). In so concluding, we note that the McCartys,in arguing that the trial court erred by granting summary judgment in the Raynor defendants' favor, rely solely on the transcript of Crites' deposition, which is not included in therecord. See Palanti v. Dillon Enterprises, Ltd., 303 Ill. App.3d 58, 66, 707 N.E.2d 695, 701 (1999) ("[a]rguments made by anappellant that depend on facts that are not contained in therecord are not sustainable on appeal").

In terms of the Weatherford defendants' summary-judgment motion, the record and the supplement thereto contain (1)the McCartys' third-amended complaint, (2) the contract betweenRaynor Hotel and Siciliano Construction, (3) the change-of-workorder, (4) the agreement between Imperial Designs and SicilianoConstruction, and (5) the full transcripts of the depositions ofLawrence, John, and Hart. However, neither the record nor thesupplement contains the transcript of Weatherford's deposition. Once again, the McCartys have failed to provide this court withthe evidentiary material that was before the trial court.

In support of their argument that the trial courtproperly granted summary judgment, the Weatherford defendantsrely on (1) the agreement between Imperial Designs and SicilianoConstruction, (2) the change-of-work order, and (3) the depositions of Lawrence, John, and Hart, which, taken together, establish that Weatherford was a loaned employee of Siciliano Construction. In support of their argument that the court erred bygranting summary judgment, the McCartys rely, in part, onWeatherford's deposition. However, because the McCartys havenot provided us with that deposition, we cannot draw any contrary inferences on the loaned-employee issue that would befavorable to the McCartys. Thus, under the circumstances, wemust assume that the trial court properly determined that (1) nogenuine issue of material fact existed and (2) the Weatherforddefendants were entitled to judgment as a matter of law. SeePalanti, 303 Ill. App. 3d at 66, 707 N.E.2d at 701 ("'thoseissues which depend for resolution upon facts not in the recordmandate affirmance'"), quoting U.S. Mineral & Mining, Inc., v.Licensed Processors, Ltd., 194 Ill. App. 3d 428, 434, 551 N.E.2d661, 665 (1990); Coleman, 160 Ill. App. 3d at 419-20, 513 N.E.2dat 514 (affirming the trial court's granting of summary judgmentwhere the appellants failed to provide a complete record onappeal).

Accordingly, for the aforementioned reasons, we affirmthe trial court's granting of summary judgment in favor of theRaynor and Weatherford defendants.

In so doing, we note that the dissent incorrectlystates that we are "lay[ing] down" a rule that "if anything ismissing from the record, appellant must lose." Slip op. at 20-21. Instead, we are merely applying the long-standing rules ofthe Supreme Court of Illinois that (1) to support a claim oftrial court error, the appellant has the burden to present thereviewing court with a sufficiently complete record; (2) areviewing court will resolve any doubts that arise from anincomplete record against the appellant; and (3) absent a sufficient record, a reviewing court will presume that the trialcourt's order was in conformity with law and had a sufficientfactual basis.

 

III. CONCLUSION

For the reasons stated, we affirm the trial court'sjudgment.

Affirmed.

McCULLOUGH, J., concurs.

COOK, P.J., dissents.


PRESIDING JUSTICE COOK, dissenting:

The majority is critical of the proposed supplement tothe record, complaining that the McCartys simply "deposited" thedocuments with the clerk of our court and left it up to theclerk to make sense of them. Slip op. at 5. I am puzzled bythat characterization, as the documents seem clear to me. Thematerials consist of two bound volumes, with pages consecutivelynumbered from 1a through 1020a. Volume I contains theWeatherford defendants' motion for summary judgment (pages 3a to48a) and supporting memorandum (pages 49a to 77a). It alsocontains the Raynor defendants' motion for summary judgment(pages 95a to 98a) and supporting memorandum (pages 99a to124a). Those motions and memoranda explain the exhibits referred to, such as the complaint and answer, contract documents,and depositions. The McCarty deposition (pages 139a to 361a) isincluded, as is the Crites deposition (pages 362a to 496a). Volume II contains only three documents, the Weatherford deposition (pages 497a to 691a), the Lawrence deposition (pages 692ato 844a), and the Hart deposition (pages 845a to 1021a). Thedocuments I have mentioned total 980 pages, 878 of which aredepositions. The majority complains that the proposed supplement "consisted of a box of over a thousand papers." Slip op.at 5. If we want to see 878 pages of depositions, we mustexpect that 878 pages will be handed to us.

I do not understand why we do not accept these documents and decide this case on the merits. Defendants werefurnished copies and, during oral argument, agreed the contentsare accurate. Defendants agree that with the addition of thesedocuments the record is complete. Chicago Title & Trust Co. v.Brooklyn Bagel Boys, Inc., 222 Ill. App. 3d 413, 417, 584 N.E.2d142, 144 (1991) (parties stipulated (during oral argument) thatattachment to brief would be included in record). The attorneyfor the Raynor defendants did complain that two pages weremissing from the McCarty deposition. He is correct, pages 142and 143 seem to be missing. The complete McCarty deposition,however, was filed as a supplement to the record by theWeatherford defendants. Even if pages are missing, the solutionis to find them, not throw out the appeal.

The majority labels the materials filed by theMcCartys as an "appendix" and cites the rule that parties cannotuse briefs and appendices to supplement the record. The rule isactually that attachments to briefs not otherwise before thereviewing court cannot be used to supplement the record. Jonesv. Police Board of the City of Chicago, 297 Ill. App. 3d 922,930, 697 N.E.2d 876, 881 (1998) (transcript of proceedings froma different case). A transcript of proceedings from anothercase, not considered by the trial court, cannot be added to therecord on appeal. Materials which were before the trial court,however, and which could be added to the record under Rule 329,can be used to supplement the record even though they happen tobe found in an "appendix." Chicago Title, 222 Ill. App. 3d at417, 584 N.E.2d at 144. The materials here, such as the depositions, are "otherwise before the reviewing court." They wereconsidered by the trial court. The majority's complaint is thatwe need the depositions and do not have them, not that they arenot legitimately before us.

The majority says that although the materials in thetwo bound volumes submitted by the McCartys are essential to thedecision of this case, we are unable to consider them becausethey are not a part of the record. We should not pretend we arehelpless. Omissions from the record may be corrected "by thereviewing court or a judge thereof." 134 Ill. 2d R. 329; Roblesv. Chicago Transit Authority, 235 Ill. App. 3d 121, 126-27, 601N.E.2d 869, 872-73 (1992) (motion to supplement allowed afteroral argument). We should enter an order allowing the two boundvolumes to supplement the record. Omissions from the record mayalso be corrected by stipulation of the parties. 134 Ill. 2d R.329. We have that stipulation here. The parties agree thematerials in the two bound volumes are accurate and were considered by the trial court. It is only necessary to return thematter to the trial court if there is a controversy as towhether the record accurately discloses what occurred in thetrial court. 134 Ill. 2d R. 329; Robles, 235 Ill. App. 3d at126-27, 601 N.E.2d at 872-73 (motion to supplement allowed eventhough record not certified). There is no controversy here.

The Weatherford defendants submitted materials similarto those submitted by the McCartys, and the clerk of our courtentered a routine order allowing them to be filed as a supplement to the record. Why are the Weatherford materials a propersupplement to the record, while the McCarty materials are animproper "appendix" which we refuse to consider? TheWeatherford motion to supplement pointed out that the failurehere was the failure of the clerk of the trial court. The clerkhad these materials (somewhere), the clerk was required to filethem as a part of the record, but the clerk failed to do so.

The majority's only objection to the proposed supplement is that the McCartys did not file a proper motion for leaveto supplement the record under Rule 329. Slip op. at 7. Rule329 does not say anything about a formal motion for leave tosupplement, only that the record may be corrected by the parties, the trial court, or the reviewing court. 134 Ill. 2d R.329. If the McCartys needed to file a formal motion for leaveto supplement the record, why did we not tell them that, insteadof springing the fact on them (when we filed our opinion) thatwe would not consider the materials? "[I]t is not an adequatedischarge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go onas before." Johnson v. United States, 163 F. 30, 32 (1st Cir.1908) (Holmes, J.). We have certainly told other litigants inthe past that a particular filing was insufficient, that something more needed to be done.

The majority lays down three rules in its opinion: (1) we must have all the evidentiary material that the trialcourt had before it, (2) appellees have no obligation in preparing the record, and (3) if anything is missing from the record,appellant must lose. I respectfully disagree.

A court is not always required to affirm the decisionof the trial court because the record is incomplete. SeeMidstate Siding & Window Co. v. Rogers, 204 Ill. 2d 314, 319,789 N.E.2d 1248, 1251 (2003); Johnson v. Matviuw, 176 Ill. App.3d 907, 912, 531 N.E.2d 970, 973 (1988) ("We deny defendant'smotion to strike plaintiff's brief, preferring instead to disregard any material in the briefs and/or appendix that is notsupported by the record so that the issues can be decided ontheir merits"). It is not necessary that the record includeeverything that the trial court had before it. Robles, 235 Ill.App. 3d at 127, 601 N.E.2d at 872 (record sufficiently completeto allow us to consider the merits of the arguments raised onappeal). To some extent the parties are allowed to choose whatshould be contained in the record. The appellant initiallyselects which portions of the proceedings she wants transcribed. The appellee may then designate additional portions that theappellee deems necessary. 166 Ill. 2d R. 323(a). The partiesare encouraged not to include unnecessary and immaterial matter,and costs may be assessed against a party who includes suchmatter. 166 Ill. 2d R. 323(a). True, the trial court clerk isrequired to include every document filed and any documentaryexhibits in the record on appeal. 155 Ill. 2d R. 321. If theclerk does not perform his duty, however, the remedy is tocorrect the record under Rule 329, not to dismiss the appeal.

Webster did not hold that if anything is missing fromthe record, appellant must lose. Webster held that a party whoasserted that his attorney lacked authority to settle a case hadthe obligation to present some evidence of that fact in thetrial court. "[T]his court will not look beyond the record onappeal to find that plaintiff's attorney lacked his authority tosettle. There must be evidence in the record that his attorney,Harris, lacked authority." Webster, 195 Ill. 2d at 436, 749N.E.2d at 964. The present case, however, does not involve alack of proof in the trial court. It is clear that the trialcourt had the depositions and exhibits in question before it. The question is whether we have those depositions and exhibitsbefore us. We clearly do.

We should require compliance with supreme court rulesso that cases may be decided fairly and on their merits. Thecommittee comments describe Rule 329 as a "sweeping provision,"with "liberal terms," under which it is possible to employ "theprocedure that will most appropriately solve the particularproblem." 134 Ill. 2d R. 329, Committee Comments, at 289. Themajority, however, is not interested in compliance, or solvingthe problem. The majority is only interested in punishingappellant.

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