Potomac Consulting, Inc. v. IS Construction, LLC

2022 IL App (1st) 210315-U

• Court: Appellate Court of Illinois
• Decided: February 4, 2022
• Docket: 1-21-0315
• Status: Unpublished

Opinion

2022 IL App (1st) 210315-U

SIXTH DIVISION February 4, 2022

No. 1-21-0315

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT

POTOMAC CONSULTING, INC., ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County ) v. ) No. 17 CH 12503 ) IS CONSTRUCTION, LLC, ) The Honorable ) Jerry A. Esrig, Defendant-Appellee. ) Judge, presiding.

PRESIDING JUSTICE PIERCE delivered the judgment of the court. Justices Harris and Oden Johnson concurred in the judgment.

ORDER

¶1 Held: The judgment of the circuit court is affirmed where plaintiff did not provide an adequate or complete record to support its arguments on appeal.

¶2 Plaintiff, Potomac Consulting, Inc, filed a notice of appeal identifying an order barring

certain witnesses at trial. The record on appeal does not support any of plaintiff’s appellate

arguments, so we affirm the circuit court’s judgment.

¶3 I. BACKGROUND

¶4 We first note that the statement of facts in plaintiff’s appellate brief does not comply with

Illinois Supreme Court Rule 341(h)(6) (eff. Oct. 1, 2020), which requires an appellant to state “the No. 1-21-0315

facts necessary to an understanding of the case *** with appropriate reference to the pages of the

record on appeal ***.” Plaintiff’s appellant brief fails to provide any citations to the record on

appeal to support any of its factual statements. Plaintiff’s failure to include any citations to the

record to support its factual statements is inexcusable. Our supreme court’s rules governing

appellate briefs are mandatory. McCann v. Dart, 2015 IL App (1st) 141291, ¶ 12. As a court of

review, we are entitled to have the issues on appeal clearly presented. Holmstrum v. Kunis, 221 Ill.

App. 3d 317, 325 (1991). 1 We would be within our discretion to strike plaintiff’s brief and dismiss

its appeal for failure to provide a complete statement of facts. Hall v. Naper Gold Hospitality LLC,

2011 IL App (2d) 111151, ¶ 9. We elect to not strike plaintiff’s brief or dismiss the appeal—which

are harsh consequences—because our review of the record demonstrates that plaintiff is not

entitled to any appellate relief.

¶5 Plaintiff filed a three-count complaint against defendant, IS Construction, LLC, and made

the following allegations. Plaintiff agreed to perform demolition work in exchange for $42,500,

but defendant never paid, so plaintiff recorded a mechanic’s lien. Count I sought to foreclose on

the mechanic’s lien. Count II asserted a claim of breach of contract, and count III, pleaded in the

alternative to count II, asserted a claim for quantum meruit. At some point, defendant filed

counterclaims, but we have not been able to locate the counterclaims in the record on appeal. The

circuit court quashed the mechanic’s lien and dismissed count I of plaintiff’s complaint with

prejudice, and the presiding judge of the chancery division transferred the case to the law division.

The parties engaged in arbitration, but plaintiff filed a notice of rejection of the arbitrator’s award.

The case proceeded to a bench trial conducted over Zoom, at which the circuit court heard witness

1 We also note that plaintiff does not cite to the record on appeal to support any of its arguments, in violation of Rule 341(h)(7), and did not append to its brief a copy of its notice of appeal, in violation of Rule 342 (eff. Oct. 1, 2019). We further note that plaintiff improperly appends certain documents to his brief that do not appear in the record, which we have not considered.

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testimony and accepted numerous documents into evidence. We note that the record on appeal

does not appear to contain a complete verbatim transcript of all the trial proceedings; the transcript

begins with a witness being sworn in and does not reflect any preliminary discussions on the record

or any opening statements. The transcript ends with the circuit court providing a date for the

attorneys to present closing argument, but no transcript of any closing arguments appears in the

record. The record is also devoid of any bystander’s report of any proceedings that were not

transcribed. On February 22, 2021, the circuit court entered judgment in favor of plaintiff and

against defendant for $20,000 on the quantum meruit claim in count III of plaintiff’s complaint.

The circuit court also entered judgment in favor of Ivan Stanila and against plaintiff in the amount

of $25,000 plus $12,737 in interest “on Stanila’s claim on a promissory note.” It is not clear from

the record, however, what claims Stanila raised or how he was a party to this action. The circuit

court’s order states it had adjudicated “all of the remaining claims of the parties,” and that it was

a final order.

¶6 Plaintiff filed a notice of appeal on March 19, 2021, stating the date of judgment as

February 22, 2021, and seeking review “of the Circuit Court Judges’ [sic] granting of Appellee’s

Motion to Exclude Witnesses at Trial.”

¶7 II. ANALYSIS

¶8 On appeal, plaintiff purports to raise three issues for review. It contends the circuit court

(1) violated Illinois Supreme Court Rule 213 (eff. Jan. 1, 2018) by excluding witnesses previously

disclosed in discovery; (2) failed to consider relevant factors before imposing a sanction pursuant

to Rule 219(c) (eff. July 1, 2002); and (3) failed to issue a written order explaining the Rule 219(c)

sanction and the exclusion of witnesses.

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¶9 Plaintiff fails to direct our attention to the portion of the record showing that the circuit

court barred any witnesses or entered any Rule 219(c) sanctions. A review of the record shows

defendant did not file any written motions seeking to bar witnesses or asking for the imposition of

Rule 219(c) sanctions. Plaintiff asserts in its brief—without any citation to the record—that “[a]t

the start of trial, Judge Esrig heard argument on the motion and ruled in favor of

Defendant/Appellee and excluded” certain witnesses. Our review of the only transcript in the

record, however, reveals no discussion of any written or oral motions to exclude witnesses or

impose sanctions under Rule 219(c).

¶ 10 Our supreme court has explained that

“an 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 the 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).

¶ 11 Here, the record on appeal does not contain any written order from the circuit court barring

any witnesses or imposing sanctions under Rule 219(c). The sole transcript provided to this court

does not reflect any argument, discussion, or ruling on any written or oral motion to exclude any

witnesses or impose Rule 219(c) sanctions. The parties have not submitted a bystander’s report

pursuant to Rule 323(c) (eff. July 1, 2017) of any proceedings not reflected in the verbatim trial

transcript. Simply put, the record before us does not reflect that the circuit court made the rulings

that plaintiff complains of on appeal. In the absence of any record support for plaintiff’s claims of

error, we presume that any proceedings not captured in an adequate record were in conformity

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with the law and had a sufficient factual basis. See Foutch, 99 Ill. 2d at 291-92. With no basis from

which to conclude that the circuit court erred in any manner, we affirm the circuit court’s judgment.

¶ 12 III. CONCLUSION

¶ 13 For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 14 Affirmed.