Ozko Sign & Lighting Co. v. Ozko Signs & Lighting Services, Inc.

2020 IL App (1st) 190793-U

• Court: Appellate Court of Illinois
• Decided: May 5, 2020
• Docket: 1-19-0793
• Status: Unpublished

Opinion

2020 IL App (1st) 190793-U No. 1-19-0793

SECOND DIVISION May 5, 2020

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

OZKO SIGN & LIGHTING COMPANY and ) Appeal from the Circuit Court ENGIN KOMU, ) of Cook County. ) Plaintiffs and Counterdefendants- ) Appellants, ) No. 13 CH 21027 ) v. ) ) The Honorable OZKO SIGNS & LIGHTING SERVICES, INC., ) Peter Flynn, VOLKAN OZDEMIR, ALAN WAGNER, PHIL ) Judge Presiding. VALENZO, JS ACCOUNTING SOLUTIONS, ) INC., and ADEL MADBOULY, ) ) Defendants, ) ) (Ozko Signs & Lighting Services, Inc., Alan ) Wagner, and Phil Valenzo, Defendants-Appellees, ) Volkan Ozdemir, Defendant and Counterplaintiff- Appellee). ______________________________________________________________________________

JUSTICE PUCINSKI delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment.

ORDER

¶1 Held: Although the trial court provided an extensive discussion of the case in its oral ruling, the plaintiffs nevertheless failed to provide sufficient arguments with proper authority in support of their claims of error and did not provide a complete trial record on appeal, making it 1-19-0793

impossible for the reviewing court to conduct a meaningful review of the plaintiffs’ claims and, thus, it was presumed that the trial court did not err.

¶2 Following a bench trial on plaintiffs, Ozko Sign & Lighting Company’s (“Ozko 1”) and

Engin Komu’s, multi-count complaint and defendant Volkan Ozdemir’s counterclaim, the trial

court found against Ozko 1 and Komu on their first amended complaint and in favor of Ozdemir

on his counterclaim, entering judgment in favor of Ozdemir in the amount of $53,053.59. On

appeal, Komu and Ozko 1 argue that the trial court erred in delaying its decision following trial,

failed to rule on all of their claims, ruled against the manifest weight of the evidence, and erred

in granting relief on Ozdemir’s counterclaim for specific performance.

¶3 BACKGROUND

¶4 For more than three years, Komu and Ozdemir operated Ozko 1 together. In 2013,

however, Ozdemir decided that he would like to go his own way. The claims in this case arise

out of the that breakup of the partnership between Komu and Ozdemir. After Ozdemir left the

partnership, he, along with former Ozko 1 employees Alan Wagner and Phil Valenzo, formed

and operated a separate lighting company, Ozko Signs & Lighting Services, Inc. (“Ozko 2”),

which competed with Ozko 1. As part of the split, Volkan and Komu entered into a written

agreement, which provided as follows:

“I, Volkan Ozdemir, am selling Engin Komu my shares of Ozko Sign & Lighting Co[.]

for the following consideration:

• $78,672.59 in cash paid via check #104086

• Two trucks…received.

• Half of the anticipated accounts receivable valued as of 9/1/2013 at $153,540.44 to be

paid as they are collected.

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• Half the furniture and half the tools and on hand inventory…received.

If after the sale date the remaining shareholder must leave the office building currently

leased by Ozko Sign & Lighting [C]o. th[e]n Volkan Ozdemir is entitled to half the

deposit minus any expenses for moving out.

Volkan Ozdemir is responsible for paying off the existing line of credit minus

$25,000, after which the line of credit shall be closed permanently as both shareholders

are currently signers.”

¶5 Ozko 1 and Komu’s first amended complaint sounded in breach of fiduciary duty,

deceptive trade practices, tortious interference with prospective business advantage, civil

conspiracy, conversion, accounting, and tortious interference with contractual relations. All of

their claims were based on allegations that Ozdemir, Ozko 2, Wagner, and Valenzo acted

improperly in leaving Ozko 1, diverting customers from Ozko 1, destroying or misappropriating

Ozko 1 files and/or tangible and intellectual property, and interfering with Ozko 1’s relationships

with its customers. 1 Ozdemir’s counterclaim alleged that Ozko 1 and Komu wrongfully failed to

pay receivables and turn over furnitkure and tools owed to Ozdemir under the written buy-out

agreement between him and Komu.

¶6 From the record before us, it appears that a bench trial on the first amended complaint

and the counterclaim was held over the course of at least four days in March, 2015. The trial

court’s decision, however, was not issued until March, 2019. The record does not contain any

explanation for the extraordinary delay in ruling.

1 Defendants JS Accounting Solutions, Inc. and Adel Madbouly were not named in the first amended complaint, because they had previously settled with Ozko 1 and Komu and had been dismissed with prejudice. -3- 1-19-0793

¶7 In its written order, the trial court stated that it was entering judgment in favor of

defendants on the counterclaim in the amount of $53,053.59. It also stated that Ozko 1 and

Komu’s claims for injunctive relief were denied, and that their claims for damages were denied

for “failure of proof.” The trial court also offered some explanation for its decisions on the oral

record. In doing so, the trial court stated that it “reviewed all of the transcript[s] that the parties

have, which is nearly all of the transcript[s], I think, my notes, the plaintiff’s exhibits, the

defendant’s exhibits, [and] both sides’ posttrial briefing.” The trial court explained that Ozko 1

and Komu’s claims essentially boiled down to claims of unfair competition. With respect to

their claims for injunctive relief, the trial court found that any concerns regarding name

confusion between Ozko 1 and Ozko 2 and any claims of damage caused by “email blasts” were

belied by the evidence presented at trial, because both sides sent out “email blasts” and because

any name confusion had disappeared. As for Ozko 1 and Komu’s damages claims, the trial court

found that Ozko 1 and Komu failed to prove that Ozko 2’s, Ozdemir’s, Wagner’s, and Valenzo’s

actions caused customers to be diverted away from Ozko 1 and that Ozko 1 and Komu failed to

prove that Ozko 2’s, Ozdemir’s, Wagner’s, and Valenzo’s actions were tortious. With respect

Ozdemir’s counterclaim, the trial court rejected his claim that Ozko 1 and Komu refused to turn

over certain tools and furniture, but agreed that he was entitled to be paid receivables in

accordance with the parties’ agreement.

¶8 After the entry of the trial court’s judgment, Ozko 1 and Komu timely instituted this

appeal.

¶9 ANALYSIS

¶ 10 On appeal, Ozko 1 and Komu argue that the trial court erred in not issuing its decision for

four years after trial, failed to rule on all of their claims, ruled against the manifest weight of the

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evidence on their tortious interference claims, and erred in granting relief on Ozdemir’s

counterclaim for specific performance where Ozdemir breached the parties’ written agreement

and entered into the agreement with unclean hands. Ozko 1 and Komu have failed to

demonstrate reversible error on any of these contentions.

¶ 11 First, Ozko 1 and Komu contend that the trial court committed reversible error by

delaying the issuance of its ruling until four years after the trial. They claim that despite

numerous inquiries with the trial court’s clerk over the years, no ruling was issued until their

counsel sent an anonymous note to the Chief Judge. At that point, the trial court requested that

the parties appear before it. According to Ozko 1 and Komu, during that appearance, the trial

court asked the parties if they wanted the court to issue a ruling, and the parties answered in the

affirmative. The trial court responded that it would “start” the process and asked for transcripts

of the trial. Ozko 1 and Komu claim that, because of the delay, the trial transcripts were no

longer available, resulting in the trial court issuing its ruling based on an incomplete record. As

a result, they argue, “[i]t is clear that with the passage of time, the trial court was unable to issue

a proper decision based on the evidence and testimony presented at the bench trial.”

¶ 12 As an initial matter, Ozko 1 and Komu’s argument alone on this issue is insufficient for

us to afford them any relief. The above constitutes the entirety of their argument on this issue.

Instead of explaining which missing transcripts made it impossible for the trial court to issue a

proper decision and what difference the missing transcripts would have made, Ozko 1 and Komu

simply make the conclusory statement that the trial court was incapable of rendering a proper

decision. Such an argument is insufficient; accordingly, in this respect, Ozko 1 and Komu have

arguably waived this contention. See Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017) (requiring that

the argument section of appeals briefs “shall contain the contentions of the appellant and the

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reasons therefor, with citation of the authorities and the pages of the record relied on”);

Sakellariadis v. Campbell, 391 Ill. App. 3d 795, 804 (2009) (“The failure to assert a well-

reasoned argument supported by legal authority is a violation of Supreme Court Rule 341(h)(7)

[citation], resulting in waiver.”); Thrall Car Manufacturing Co. v. Lindquist, 145 Ill. App. 3d

712, 719 (1986) (“A reviewing court is entitled to have the issues on appeal clearly defined with

pertinent authority cited and a cohesive legal argument presented. The appellate court is not a

depository in which the appellant may dump the burden of argument and research.”).

¶ 13 Waiver aside, however, the lack of a complete record on appeal is fatal to Ozko 1 and

Komu’s claim. It is a well-established principle in appellate practice that the appellant bears the

burden of presenting the reviewing court with a record on appeal that is sufficient to allow for

meaningful review.

“[A]n appellant has the burden to present a sufficiently complete record of the

proceedings at trial to support a claim of error, and in the absence of such a record on

appeal, it will be presumed that the order entered by the trial court was in conformity

with law and had a sufficient factual basis. Any doubts which may arise from the

incompleteness of the record will be resolved against the appellant.”

Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984).

¶ 14 Here, the record on appeal is woefully inadequate. First, there is no official report of

proceedings of the bench trial. Although there are unofficial transcripts attached to the parties’

written closing arguments in the common law record, it is clear from reading them that they do

not represent the entirety of the bench trial proceedings. In addition, the trial court’s statement

on the record while issuing its ruling indicated that the parties did not submit transcripts of the

entire proceedings, and Ozko 1 and Komu acknowledge in their brief on appeal that transcripts

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of all of the trial were not available. Finally, the record on appeal does not contain the trial

exhibits.

¶ 15 Ozko 1 and Komu’s contention that the trial court was unable to issue a proper decision

due to the delay is based on the premise that the trial court’s decision was incorrect. Without a

complete trial record, however, we are unable to assess whether the trial court’s decision was

improper. Accordingly, we must presume the trial court’s finding was in accord with the law

and evidence. Id. We also observe that the record on appeal does not contain any transcript of

the hearing at which Ozko 1 and Komu claim the trial court asked if they wanted a ruling and

stated that it would begin the process of formulating one. Accordingly, we are unable to assess

the veracity or accuracy of their representations of what occurred there or the trial court’s

reasons for failing to issue a decision sooner.

¶ 16 We are not unaware of the fact that Ozko 1 and Komu claim that some transcripts were

unavailable due to the delay in the trial court’s ruling. They have not, however, pointed to

anything in the record demonstrating this to be the case. Moreover, Ozko 1 and Komu, as the

appellants bore the burden of preserving and presenting a complete record, including the

necessary transcripts. Wyman-Gordon Co. v. Bernardi, 135 Ill. App. 3d 685, 689 (1985) (“[I]t is

the duty of every appellant in a reviewing court properly to preserve the record of proceedings

for the information of the court.”); Belcher v. Spillman, 28 Ill. App. 3d 973, 975 (1975) (“It has

been consistently held by the reviewing courts of Illinois that it is the duty of any appellant ***

who wishes to proceed in a reviewing court properly to preserve the entire record of proceedings

so that the reviewing court may be fully informed of the issues before it.”). Even assuming that

the verbatim transcripts could no longer be obtained, Ozko 1 and Komu could and should have

procured a bystander’s report pursuant to Supreme Court Rule 323(c) (eff. July 1, 2017). Yet,

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there is no indication in the record before us that they made any such attempt. The failure of

counsel for Ozko 1 and Komu to preserve the transcripts of to seek a bystander’s report is

proving fatal to their claims on appeal.

¶ 17 Ozko 1 and Komu next contend that the trial court failed to rule on all of their claims.

The record reveals, however, that the trial court did, in fact, rule on all of their claims in its

written order. In that written order, the trial court explicitly stated that all of Ozko 1 and Komu’s

claims for injunctive relief were denied, and all of their claims for damages were denied for a

lack of proof. Given that all of the claims in their first amended complaint asked either for

injunctive relief or damages, these denials resolved all of Ozko 1 and Komu’s claims. Although

the trial court did not explain its decision to deny relief on each of their claims—choosing,

instead, to address only some of them in its oral statements—it did rule on all of them, and Ozko

1 and Komu have not cited any authority for the proposition that the trial court was obligated to

provide an explanation for its ruling on each count. See Ill. S. Ct. R. 341(h)(7) (requiring that

the argument section of appeals briefs “shall contain the contentions of the appellant and the

reasons therefor, with citation of the authorities and the pages of the record relied on”);

Sakellariadis, 391 Ill. App. 3d at 804 (“The failure to assert a well-reasoned argument supported

by legal authority is a violation of Supreme Court Rule 341(h)(7) [citation], resulting in

waiver.”); Thrall Car Manufacturing Co., 145 Ill. App. 3d at 719 (“A reviewing court is entitled

to have the issues on appeal clearly defined with pertinent authority cited and a cohesive legal

argument presented. The appellate court is not a depository in which the appellant may dump

the burden of argument and research.”).

¶ 18 In addition, the incomplete record on appeal makes it impossible for us to afford Ozko 1

and Komu any relief on this contention. They claim that the trial court could not have ruled on

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all of their claims, because the trial court improperly condensed their claims into a personal

claim of unfair competition between Komu and Ozdemir, did not consider the harm caused to

Ozko 1, failed to recognize that Ozko 1 and Komu proved their claims of breach of fiduciary

duty against the individual defendants, and otherwise failed to address the remaining claims in

their complaint. Absent a complete record, however, we are unable to evaluate whether the trial

court’s assessment of their claims as essentially being one for unfair competition was inaccurate.

Moreover, although Ozko 1 and Komu’s first amended complaint identified a number of distinct

claims, we are unable to determine whether they moved forward with presenting evidence on

each of those independent claims or, as the trial court stated, essentially presented them as claims

for unfair competition. In addition, we have no way of assessing the merits of Ozko 1 and

Komu’s contention that they proved their claims of breach of fiduciary duty against each of the

individual defendants. Accordingly, even if the record did not clearly reflect that the trial court

ruled on each claim, the lack of a complete record would require us to affirm.

¶ 19 Finally, with respect to Ozko 1 and Komu’s last two contentions on appeal, we think it is

abundantly apparent that a complete record of the testimony and other evidence presented at trial

is essential to an assessment of whether the trial court’s rulings on their complaint and Ozdemir’s

counterclaim were against the manifest weight of the evidence. Accordingly, once again, given

the incomplete record, we must presume the trial court’s findings in these respects were proper.

Foutch, 99 Ill. 2d at 391-92.

¶ 20 CONCLUSION

¶ 21 For the foregoing reasons, the judgment of the Circuit Court of Cook County is affirmed.

¶ 22 Affirmed.

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