Docket No. 89076-Agenda 15-January 2001.

ROBERT EUGENE WEBSTER, Appellant, v. EDWIN
HARTMAN, Appellee.

Opinion filed April 19, 2001.

JUSTICE FITZGERALD delivered the opinion of the court:

Plaintiff, Robert Eugene Webster, filed a personal injuryaction against defendant, Edwin Hartman, in the circuit court ofSangamon County. Several years later, the circuit court granteddefendant's motion to enforce a settlement agreement againstplaintiff and dismissed plaintiff's cause of action with prejudice.Plaintiff appealed. The appellate court affirmed the order of thecircuit court, holding that, absent a sufficient record on appeal, itmust presume that the order of the circuit court enforcing thesettlement agreement was in conformity with the law and had asufficient factual basis. 309 Ill. App. 3d 459, 460. The appellatecourt also held that, regardless of where the burden of proof maylie in the trial court, the burden of providing a sufficient record onreview always lies with the party who is claiming that the trialcourt erred: in this case, the plaintiff. 309 Ill. App. 3d at 461. Wegranted plaintiff's petition for leave to appeal and now affirm thejudgment of the appellate court.

BACKGROUND

On February 10, 1994, plaintiff sued defendant for injuries heallegedly sustained during an automobile collision at anintersection in Springfield, Illinois, in February 1992. Litigationensued until 1998, when, according to the court docket, the "casesettled."

Prior to settlement, the common law record indicates, theparties repeatedly quarreled over discovery issues. During a three-year period, defendant filed multiple motions to compel discoveryresponses. On December 6, 1995, defendant filed a motion forjudgment resulting from plaintiff's failure to comply with adiscovery order entered by the trial court. Two weeks later,plaintiff's attorney, with permission of court, withdrew as counselfor plaintiff. Plaintiff's attorney withdrew because "[plaintiff] hassubstantially failed to fulfill obligations to me and has made itunreasonable [sic] difficult for my firm to represent him, inparticular, my client has failed to communicate and respond tocorrespondence in a timely manner and has failed to followinstructions and act upon affiant's advice." Approximately onemonth later, a second attorney, Kevin Harris, entered hisappearance for plaintiff. Defendant withdrew his motion forjudgment. On December 2, 1996, Harris moved to withdraw ascounsel for plaintiff because "[p]laintiff's failure to assist counselby providing information imperative to his case precludescounsel's effective representation." The court granted Harris'motion to withdraw, and again, defendant filed a motion forjudgment on the basis that no attorney entered an appearance inthe action.

On February 20, 1997, at the scheduled hearing ondefendant's motion for judgment, a third attorney representedplaintiff. The common law record is void of information regardingthe proceedings at this hearing. Briefs by the parties indicate thatthe motion was either withdrawn or continued for hearing andnever argued. Notwithstanding, plaintiff's lawsuit continued anddefendant filed supplemental interrogatories on April 14, 1997.Plaintiff failed to answer these interrogatories and defendant,again, moved to compel plaintiff to answer them.

Prior to June 1997, plaintiff's second attorney, Harris,returned as counsel for plaintiff. The date of his return is unclearbut not disputed by the parties. After June 1997, Harris appearedon behalf of plaintiff at various court hearings, is listed asplaintiff's counsel on various court documents, signed and filedmultiple court motions, and is listed as the recipient of discoveryserved by defendant.

The trial court initially set the case for a jury trial onNovember 19, 1997. By agreement of both parties, the matter wascontinued to January 12, 1998. On December 23, 1997, plaintiffmoved to continue the trial a second time. Harris appeared beforethe court for a hearing on plaintiff's motion to continue. The trialcourt entered a case management order specifying, in part, thefollowing schedule: (1) plaintiff to disclose opinion witnesses byMarch 15, 1998; (2) all discovery to be concluded by September15, 1998; and (3) cause set for docket call September 1998.

After the close of discovery, on September 23, 1998, plaintiffmoved to amend the case management order to extend discoveryto January 1, 1999. Plaintiff claimed that his referral to five newtreating physicians warranted additional time to conduct discoveryand evidence depositions. Specifically, plaintiff sought to deposeDr. Charles Aprill of the Magnolia Clinic in New Orleans,Louisiana, and Dr. Stephen Pneda of the Memorial Medical CenterPain Management Clinic in Springfield, Illinois. Defendantresponded with a motion to "set a trial date certain," a motion tocompel, and a motion to bar plaintiff's expert testimony.Defendant argued that the case inactivity, the age of the case,plaintiff's failure to seek the extension prior to the discovery cut-off, and plaintiff's continued failure to comply with discoverywarranted an order setting a trial date certain, as well as an orderbarring plaintiff's experts. On October 6, 1998, the trial courtgranted defendant's motion to "set a trial date certain," motion tocompel, and motion to bar expert testimony. The court furtherdenied plaintiff's motion to amend the case management order.

On November 5, 1998, plaintiff filed a motion to reconsiderthe trial court's order denying his motion to amend the casemanagement order and extend discovery. In support of thismotion, plaintiff attached a copy of a report by Dr. Aprill. In thisreport Dr. Aprill diagnosed plaintiff with "Tired Neck Syndrome."Plaintiff argued that the trial court should reconsider its previousorder and extend expert discovery because this report containedthe "first definitive diagnosis" causally relating his symptoms tothe accident.

The trial court docket states that five days later, on November10, 1998, the "case settled." On November 13, 1998, defendantfiled a motion to enforce settlement stating: "[a]fter receiving thecourt's ruling [the October 6, 1998, order barring plaintiff fromoffering any opinion testimony] this matter was settled for$10,000.00." Defendant sought to enforce settlement through thecourt because plaintiff failed to execute and return dismissal andrelease documents. On December 7, 1998, Harris and counsel fordefendant appeared in court for a hearing on defendant's pendingmotion to enforce settlement. The Sangamon County docket entryfor this hearing states, "Present attorneys Koepke and Harris.Cause called for hearing on defendant's motion to enforcesettlement. Motion allowed. Plaintiff's motion to reconsiderdenied. Case dismissed with prejudice. Cause stricken."

On January 5, 1999, plaintiff filed a timely pro se notice ofappeal on the basis that he did not agree to the settlement. Theappellate court affirmed the decision of the trial court. 309 Ill.App. 3d 459. The appellate court explained that it had no recordof the evidence presented at the hearing on defendant's motion toenforce settlement and no basis for holding that the trial court'sfinding-that settlement occurred-was against the manifest weightof the evidence. 309 Ill. App. 3d at 460. The appellate court alsoheld that the defendant-appellee had no burden to ensure that acomplete record was filed in the reviewing court. 309 Ill. App. 3dat 461. The appellate court denied the petition for rehearing andthis court allowed plaintiff's petition for leave to appeal. 177 Ill.2d R. 315.

ANALYSIS 

Plaintiff first argues that the appellate court misapprehendedthe sufficiency of the record on review. Both parties argue weshould review this issue under the manifest error standard ofreview. Typically, the manifest error standard is appropriate toreview findings of fact made by a trial judge. People v. Coleman,183 Ill. 2d 366, 384-85 (1998); Reese v. E.M. Melahn, 53 Ill. 2d508, 512-13 (1973). In this instance, however, there is no recordto review the basis for the trial court's determination. The questionis a legal one-whether in the absence of a record the appellatecourt correctly held that it must presume the trial court's holdinghad a sufficient legal and factual basis. Accordingly, we reviewsuch legal questions de novo. Coleman, 183 Ill. 2d at 388.

This court has long held that in order to support a claim oferror on appeal the appellant has the burden to present asufficiently complete record. Foutch v. O'Bryant, 99 Ill. 2d 389,391-92 (1984). In fact, "[f]rom the very nature of an appeal it isevident that the court of review must have before it the record toreview in order to determine whether there was the error claimedby the appellant." Foutch, 99 Ill. 2d at 391. Where the issue onappeal relates to the conduct of a hearing or proceeding, this issueis not subject to review absent a report or record of the proceeding.Instead, absent a record, "it [is] presumed that the order entered bythe trial court [is] in conformity with the law and had a sufficientfactual basis." Foutch, 99 Ill. 2d at 392.

In Foutch v. O'Bryant, 99 Ill. 2d 389 (1984), defendant'smotion to vacate judgment was denied by the trial court.Defendant failed to present a complete record of the hearing onreview. Specifically, the record was devoid of a transcript or reportof the proceedings, a bystander's report, or an agreed statement offacts (166 Ill. 2d Rs. 323(c), (d)). This court held that "[a]s there[was] no transcript of the hearing on the motion to vacate here,there is no basis for holding that the trial court abused discretionin denying the motion." Foutch, 99 Ill. 2d at 392.

Similarly, in Skaggs v. Junis, 28 Ill. 2d 199 (1963), this courtrejected the argument that where the record lacks information ofevidence presented at a hearing, we must assume none was heardand that the court's order, therefore, was improper. Instead, weheld that "it is presumed that the court heard adequate evidence tosupport the decision that was rendered" unless the record indicatesotherwise. Skaggs, 28 Ill. 2d at 201-02.

In the instant case, the record contains no transcript of thehearing on defendant's motion to enforce settlement, no report ofthe proceedings, no bystander's report, and no agreed statementsof facts. 166 Ill. 2d Rs. 323(c), (d). Additionally, plaintiff neverfiled a response to defendant's motion to enforce settlement or amotion to reconsider the order granting that motion. As such, weknow only that on December 7, 1998, counsel for both partieswere present and that the "cause was called for hearing ondefendant's motion to enforce settlement." We do not know whatevidence or arguments were presented at that hearing. We do notknow the basis for the trial court's decision. We do know,however, that the trial court granted defendant's motion.⁽¹⁾ Underthese circumstances, as correctly held by the appellate court, wewill presume that the trial court heard adequate evidence tosupport its decision and that its order granting defendant's motionto enforce settlement was in conformity with the law. Foutch, 99Ill. 2d at 391-92; Skaggs, 28 Ill. 2d at 201-02.

Plaintiff urges this court to consider the statements in his prose notice of appeal in determining the sufficiency of the record onreview and as evidence that the trial court judgment was againstthe manifest weight of the evidence. We decline to do so. Plaintiffstates in his notice of appeal that "no *** settlement was agreed toby either the plaintiff or his attorney." A notice of appeal is filedin the trial court after the trial court rules. 155 Ill. 2d R. 303. Thepurpose of the notice of appeal is not to place new "evidence" intothe record. Its purpose is more limited-to preserve the right ofreview. Regardless of the veracity of statements contained in anotice of appeal, these statements are not usable as evidence. Toconsider a notice of appeal as evidence a court of review wouldmake credibility determinations to assess its trustworthiness andaccuracy. This outcome directly conflicts with well-establishedprecedent of this court. The trial court "as the trier of fact *** ina position superior to a court of review" makes determinationsbased on the evidence and weighs the credibility of participants tothe litigation. Schulenburg v. Signatrol, Inc., 37 Ill. 2d 352, 356(1967).

Plaintiff also requests this court consider evidence regardingthe January 24, 2000, disbarment of his attorney, Harris, forconduct involving dishonesty, fraud, deceit, or misrepresentation,as evidence that plaintiff did not give Harris authority to settle.Essentially, plaintiff argues that because Harris engaged inwrongful conduct in other litigation, his conduct must have beendeceitful or fraudulent when he represented plaintiff. We cannotmake such an assumption. This court will not reverse a trialcourt's decision on the basis of speculation and conjecture. Harriswas disbarred for conduct unrelated to this litigation andsubsequent to the December 7, 1998, hearing on defendant'smotion to enforce settlement. This information was not availableto the trial judge when he made his determination, as thedisbarment occurred one year after the trial court granteddefendant's motion to enforce settlement.

Plaintiff cites People v. McDuffee, 187 Ill. 2d 481 (1999), assupport for the proposition that defendant's burden in the trialcourt to establish the opposing counsel's authority to settle extendsto the appeal. Specifically, plaintiff argues that it is defendant'sburden to provide a sufficient record on appeal to show that Harrishad authority to settle.

Plaintiff incorrectly relies on McDuffee to support thisproposition. In McDuffee a defendant filed a motion forsubstitution of judge seven days after his first appearance in court.The State opposed the motion as untimely, arguing that thedefendant learned the identity of the judge 22 days before he filedhis motion to substitute judge by receipt of a mailed trial docket.The record on appeal did not contain the trial docket letterallegedly mailed to the defendant. The trial court denied thedefendant's motion as untimely, and the decision was affirmed onappeal. We reversed the appellate court and held that absentevidence in the record to show the defendant had knowledge of thetrial judge before his first appearance, his motion to substituteseven days after his first appearance was within the statutorilyrequired 10-day period. McDuffee, 187 Ill. 2d at 491.

McDuffee is inapposite because it does not address extendinga party's trial court burden to the appellate stage. Rather, it standsfor the proposition that a reviewing court cannot look beyond therecord and speculate on what may have occurred in the trial court.A court of review is limited to the record before it. In McDuffee,there was no evidence in the record that a trial docket letter existedor was ever mailed. This court refused to speculate and find thatthe defendant had knowledge of the judge's identity 22 daysbefore he filed his motion to substitute. Instead, based on therecord one could only discern that defendant first learned thejudge's identity when he appeared seven days before he filed hismotion. Likewise, this court will not look beyond the record onappeal to find that plaintiff's attorney lacked his authority to settle.There must be evidence in the record that his attorney, Harris,lacked authority.

The defendant's burden of proof in the trial court is not atissue. On appeal it is always the appellant's burden to provide thecourt of review with a sufficient record in order to establish error.Foutch, 99 Ill. 2d at 391-92. Plaintiff failed to satisfy his burden.

In light of the foregoing, we find it unnecessary to addressplaintiff's additional contention. The judgment of the appellatecourt is affirmed.

Affirmed.

1. ¹In order to grant a motion to enforce an out-of-court settlement, thiscourt has long held that counsel must possess express consent orauthorization to compromise or settle a case. Danziger v. Pittsfield ShoeCo., 204 Ill. 145, 149 (1903). The trial court does not presume authorityto settle; rather, the burden rests with the party alleging authority toshow that fact. Danziger, 204 Ill. at 149.