APPEAL from the Circuit Court of Franklin County; the Hon.
WILLIAM G. EOVALDI, Judge, presiding.
MR. PRESIDING JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Plaintiff, Robert Ray, brought an action for the declaration of a constructive trust in his favor upon approximately 40 acres of land which had been purchased by defendants, Emerson J. and Joyce E. Winter, and for damages for lost profits arising from plaintiff's inability to enter the land to raise crops. The trial court entered a decree whereby the court declared that defendants held the 40 acres in constructive trust for plaintiff, ordered defendants to convey the land to plaintiff upon plaintiff's payment of $5,333.20 and awarded plaintiff $2,500 damages. Defendants filed a post-trial motion, which was denied. Defendants appeal.
The facts in this case can be briefly summarized as follows. Plaintiff wished to purchase some land and had made inquiry concerning a tract of approximately 60 acres near his home in Thompsonville, Illinois. He learned that the land was owned by a man named Mullikin who lived in Kankakee, Illinois. In July of 1972 plaintiff contacted Mullikin to discuss the matter and Mullikin agreed to sell the 60 acres to plaintiff for $8,000, apparently an attractive price. Because plaintiff did not then have the amount of money needed, he asked Mullikin to save the land for him until he sold some cattle in the fall of the year. Mullikin agreed to do so.
A short time thereafter, plaintiff became aware that Emerson Winter was also looking for some land to purchase in the same area of Illinois. When Emerson and Joyce Winter came to plaintiff's home in mid-July of 1972, plaintiff told Emerson Winter of his arrangement with Mullikin, took Winter to see the land and told Winter that he would sell 20 of the 60 acres to him at the same price per acre which plaintiff was to pay Mullikin. On August 15, 1972, plaintiff and defendants had a telephone conversation in which they discussed the possibility that Mullikin might sell the land to some other party. The source of their concern is not indicated in the record, and there was conflicting evidence at the trial regarding whether it was plaintiff or defendants who originally called to the attention of the other the matter of the possible sale by Mullikin to some other party. At any rate, during the conversation of August 15, 1972, the parties decided that Emerson Winter, who either had the necessary $8000 for the purchase of the 60 acres or could easily get the money, should himself contact Mullikin and make the purchase of the 60 acres.
Plaintiff gave defendants Mullikin's telephone number, and Emerson Winter immediately thereafter contacted Mullikin and arranged for the sale of the land by Mullikin to the Winters. At this point the evidence is in conflict. Plaintiff testified that the decision to allow defendants to purchase the entire tract was predicated upon an agreement that defendants would convey 40 acres to plaintiff when plaintiff sold his cattle and the money was available. Defendant Emerson Winter denied any knowledge of this agreement and stated that he bought the entire acreage when plaintiff informed him that he did not intend to place a mortgage upon his own property and would therefore not have adequate funds to purchase the land. Defendant denied any knowledge of plaintiff's intention to sell the cattle to obtain enough money to make a down payment on the property.
Plaintiff gave defendants Mullikin's telephone number, and Emerson Winter immediately thereafter contacted Mullikin and arranged for the sale of the land to the defendants. Plaintiff also contacted Mullikin to accede to the sale. It is not clear whether plaintiff informed Mullikin of the alleged agreement with the defendants and Mullikin did not testify at trial.
Because of difficulties with abstracting and recording, the sale was not consummated until late October, 1972, and the final payment was not made until late November. Prior to that time plaintiff contacted defendants once to inquire whether plaintiff could remove hay from the property and prepare the ground for planting. Defendant Emerson Winter informed plaintiff that he had not yet completed the purchase of the tract and could therefore not give such permission. Nothing was said at this time about the alleged agreement.
The next contact between the parties came in January, 1973, when defendant Joyce Winter wrote to Mrs. Ray that defendants intended to keep the entire 60 acres. Plaintiff responded with an apparently bitter and obliquely threatening letter to defendant Emerson Winter. Defendant responded with a letter to plaintiff that the situation could have been "worked out" but for plaintiff's letter. It was apparently this bitterness which prompted defendants' final decision to keep the entire tract even though defendant Emerson Winter admitted at trial that he did not want the 40 acres.
It is undisputed from the evidence that defendants paid the entire consideration for the property including the costs of the sale, abstracting and recording. Plaintiff at no time tendered any money to defendants even though plaintiff sold the cattle in September, 1972. The only contact between the parties between August, 1972, and January, 1973, was the conversation about the hay during which no mention of the alleged agreement was made. Defendants, after having purchased the land, decided to keep the entire 60 acres and refused to convey the 40 acres which plaintiff had wished to obtain to plaintiff. As a result, plaintiff brought the instant action.
Various motions were filed by both sides in this case. Two of these motions, plaintiff's motion to dismiss the appeal and defendants' motion to add certification to the report of trial proceedings, were ordered taken with the case and must be discussed before reaching the merits of the case. It is our opinion that the motion to dismiss should be denied and that we should treat the report of proceedings as if it were properly certified.
Defendants filed their notice of appeal in the trial court on March 4, 1974. On May 6, 1974, defendants filed in the appellate court a motion for an extension of time to file the record on appeal and the report of proceedings. They were allowed until June 24, 1974, to do so. On June 27, 1974, three days after the expiration of the extended time, defendants filed the report of proceedings in the trial court and on July 1, 1974, seven days after the expiration of the extended time, they filed the record. Plaintiff made no objection to the tardiness of the record and the report of proceedings. Defendants filed a motion to extend the time for filing the brief and abstract or excerpts from the record on August 2, 1974, and they were allowed until August 19, 1974, to do so. The abstract and the appellants' brief were both timely filed on August 8, 1974, and August 19, 1974, respectively.
On September 13, 1974, plaintiff filed a motion to dismiss the appeal, asserting several grounds for such dismissal, among which were the following: (1) the appeal bond had not been properly filed; (2) the report of proceedings had not been presented to the trial judge for certification, and a stipulation for waiving certification had not been made; (3) the praecipe for record had not been filed; (4) the original record on appeal had not been filed in the appellate court; (5) the abstract failed to include the notice of appeal, the judgment or order appealed from, the pleadings, the conference on instructions and the instructions appealed from, and the exhibits; and (6) the appellants' brief failed to comply with Supreme Court Rule 342 in a number of specified respects.
On September 27, 1974, defendants filed an answer requesting a denial of plaintiff's motion to dismiss and requesting that defendants be allowed to file a supplemental abstract. After plaintiff filed an objection to defendants' answer, this court allowed defendants to file a supplemental abstract and ordered plaintiff's motion to dismiss to be taken with the case.
On December 19, 1974, defendants filed in this court a motion to add certification to the report of proceedings. Attached to the motion was a prepared order of certification which defendants sought to have submitted to the trial judge for his signature. This motion was also ordered to be taken with the case.
As of the time of oral argument, according to plaintiff's counsel, all of the deficiencies pointed out by plaintiff's motion to dismiss had been corrected except for the lack of certification of the report of proceedings. We are thus faced with the sole question whether the appeal should be dismissed for failure of defendants to have the report of proceedings certified by the trial judge.
Supreme Court Rule 323(b), (d) (Ill. Rev. Stat. 1975, ch. 110A, pars. 323(b), (d)), provides in pertinent part:
"(b) Certification and Filing. A report of proceedings shall be submitted, upon notice, to the judge before whom the proceedings occurred or his successor (or if that is impossible because of his absence or his sickness or other disability, then to any other judge of the court) for his certificate of correctness, and shall be filed, duly certified, in the trial court within 49 days after the filing of the notice of appeal. If, however, the parties so stipulate, a report of proceedings may be filed without certification.
(d) Agreed Statement of Facts. The parties by written stipulation may agree upon a statement of facts material to the controversy and file it without certification in lieu of and within the time for filing a report of proceedings."
It is undisputed that the parties did not stipulate that the report of proceedings could be filed without certification or that an agreed statement of facts could be filed in lieu of the report of proceedings. Thus it was incumbent upon the defendants to obtain the trial judge's certification of the report of proceedings according to Supreme Court Rule 323(b).
Thus, the important question concerns the effect of defendants' failure to obtain such certification. Several Illinois cases have given consideration to this problem under present Supreme Court Rule 323(b) or its predecessors. In Morse v. Williams, 5 Ill. (4 Scam.) 285 (1843), the court sustained the motion to strike the cause from the docket because the transcript had not been certified by the trial court. In Lindgren v. Swartz, 49 Ill. App. 488 (2d Dist. 1893), and Hall's Safe Co. v. Emmerson, 169 Ill. App. 156 (4th Dist. 1912), the courts held that the certificate of the court reporter could not substitute for the certificate of the judge and that, since the judge's certificate was lacking, the alleged errors could not be considered and the judgments were affirmed. Similar rulings were made by the courts in Hayes v. U.S. Materials Co., 228 Ill. App. 286 (1st Dist. 1923), and First National Bank v. 10 West Elm Street Building Corp., 277 Ill. App. 337 (1st Dist. 1934).
Considering the necessity of the certification of the report of proceedings, the court in Suttles v. Zimmerman, 287 Ill. App. 316, 318, 5 N.E.2d 94, 95 (4th Dist. 1936), stated:
"We think the authorities cited establish the rule that the transcript of proceedings, now provided for by the Civil Practice Act, must be authenticated as to completeness and correctness, by the signature of the judge presiding at the trial, and that unless same is done it is the duty of the reviewing court to dismiss the appeal when its attention is drawn to such fact."
In Second National Bank v. Jones, 309 Ill. App. 358, 33 N.E.2d 732 (4th Dist. 1941), the court held that no precise or technical form of certification was required; the court also, however, reiterated its position taken in Suttles that certification was necessary. The court stated:
"[I]t is the conclusion of this court that no precise or technical form of certification is required, and that the test should always be whether the transcript has, in fact, been certified by the court, irrespective of the form of such certificate. We do not desire, however, that this opinion carry with it the implication that appellant is relieved of the necessity of obtaining a certificate by the trial judge of such correctness and completeness." 309 Ill. App. 358, 362, 33 N.E.2d 732, 735.
The court in Arndt v. Arndt, 336 Ill. App. 65, 82 N.E.2d 908 (1st Dist. 1948), not confronted with a situation in which it had to determine the effect of a lack of certification of the report of proceedings, nevertheless pointed out:
"Rulings of a court at a trial are properly shown by a report of proceedings in the form of a complete stenographer's report or a condensed statement, or, in lieu thereof, a written stipulation of the facts material to the controversy, either of which must be certified by the trial court to be correct." 336 Ill. App. 65, 70, 82 N.E.2d 908, 910.
In Walker v. Walker, 6 Ill. App.3d 214, 285 N.E.2d 235 (1st Dist. 1971) (abstract opinion), the court dismissed the appeal because the report of proceedings was both incomplete and uncertified by the trial judge.
In their answer to the motion to dismiss the appeal the instant defendants have argued that this court under Supreme Court Rule 329 (Ill. Rev. Stat. 1975, ch. 110A, par. 329), can either supply the required certification itself or allow defendants to return to the trial court and obtain such certification. Rule 329 provides:
"The record on appeal shall be taken as true and correct unless shown to be otherwise and corrected in a manner permitted by this rule. Material omissions or inaccuracies or improper authentication may be corrected by stipulation of the parties or by the trial court, either before or after the record is transmitted to the reviewing court, or by the reviewing court. Any controversy as to whether the court accurately discloses what occurred in the trial court shall be submitted to and settled by that court and the record made to conform to the truth. If the record is insufficient to present fully and fairly the questions involved, the requisite portions may be supplied at the cost of the appellant. If necessary, a supplemental record may be certified and transmitted."
Defendants also direct our attention to the Committee Comments to this Rule (Ill. Ann. Stat., ch. 110A, par. 329 (Smith-Hurd 1968)), which state:
"This rule is a comprehensive provision covering amendment of the record on appeal, correction of improper authentication, and the settling of any questions concerning whether the record conforms to the truth. It contains portions of former rule 36(3) and (4). Under this sweeping provision, it will be possible to supply omissions, correct inaccuracies or improper authentication, or settle any controversy as to whether the record on appeal accurately discloses what occurred at the trial by the procedure that will most appropriately solve the particular problem. In view of the liberal terms of this paragraph, the rather elaborate provisions of former rule 36(4), requiring that a claim as to improper authentication be raised by motion before or at the time of the filing of the brief of the party making the claim, were eliminated as no longer necessary. Unless there is some real prejudice involved, there will be no incentive for claiming improper authentication."
1 It is clear that had defendants made some attempt to obtain certification of the report of proceedings but fell short of being in complete conformity with the requirements of Supreme Court Rule 323, this court would have had the power to treat the report of proceedings as if it were properly authenticated. (Yoselle v. Yoselle, 54 Ill. App.2d 354, 204 N.E.2d 129 (1st Dist. 1964); Second National Bank v. Jones; Supreme Court Rule 329.) It is also true that this court could treat the report of proceedings as properly authenticated if defendants had sought the certification of the trial judge but such certification was withheld despite the lack of objection to the accuracy of the report of proceedings. (Jaskowiak v. Village of Posen, 70 Ill. App.2d 409, 218 N.E.2d 6 (1st Dist. 1966); Torrance v. City National Bank, 32 Ill. App.2d 288, 177 N.E.2d 646 (2d Dist. 1961) (abstract opinion).) Our concern here, however, is in determining what effect defendants' failure not only to obtain certification, but also to seek certification, should have.
Most significant in this regard is the fact that plaintiff has made no claim in his motion to dismiss, in his brief, during oral argument, or at any other time, that the report of proceedings before this court is either incomplete or inaccurate. Under former Supreme Court Rule 36(4) (Ill. Rev. Stat. 1961, ch. 110, par. 101.36), plaintiff would have been required to support his motion to dismiss by affidavit showing both that the uncertified report of proceedings was inaccurate and that prejudice would result to him as a consequence of the inaccuracy. Present Supreme Court Rule 329, which is a combination of portions of former Rule 36(3) and (4), has omitted the requirement of the affidavit claiming inaccuracy and prejudice. This does not mean, however, that under present Rule 329 a party can simply show that certification is lacking and obtain a dismissal. As pointed out by the first sentence of Rule 329, the record on appeal which, of course, may include the report of proceedings, is presumed "true and correct unless shown to be otherwise * * *."
The second sentence of Rule 329 provides that "[m]aterial omissions or inaccuracies or improper authentication" may be rectified by the trial court, by the reviewing court, or by the stipulation of the parties. Although one could argue otherwise, the best interpretation of this sentence, in our opinion, is that the term "material omissions" includes lack of certification. This interpretation is in harmony with the overall purpose of Rule 329, which, as pointed out by the Committee Comments to the Rule, is intended to provide the court with much latitude in dealing with any controversy over the accuracy of the record on appeal. Therefore, since plaintiff has not indicated that the report of proceedings in the instant case is either incomplete or inaccurate or that he is prejudiced by the lack of certification by the trial judge, and since the report is presumed true and accurate unless otherwise shown, we will treat the report as if properly certified and proceed to discuss the merits of the appeal.
We recognize that this is a departure from the rule established in Morse v. Williams, Suttles v. Zimmerman, and other cases discussed above. It is, however, a result consistent with the liberalized provision of Rule 329 and a result consistent with the underlying reason for the certification requirement, that is, simply to assure the accuracy and completeness of the report of proceedings. We also recognize that had the record been incomplete as well as uncertified, a different result would be required here. (See Walker v. Walker.) Similarly, we also should point out that were we dealing in the instant case with a bystander's report in lieu of a verbatim transcript, certification by the trial judge would be of much greater importance; and without such certification or stipulation by the parties, dismissal of the appeal or affirmance of the judgment would be required. (See Belcher v. Spillman, 28 Ill. App.3d 973, 329 N.E.2d 550 (1st Dist. 1975).) Finally, although we have decided to review the instant case on its merits we reiterate our position in this regard as stated in Wenige-Epperson, Inc. v. Jet Lite Products, Inc., 28 Ill. App.3d 320, 321, 328 N.E.2d 665, 666 (5th Dist. 1975):
"[W]e have decided to review the case on its merits, and the motion [to dismiss] is therefore denied. We note, however, that significant, unexcused failure of compliance on the part of defendant-appellant with the Supreme Court Rules appears of record. We strongly disapprove of any noncompliance with the rules of procedure adopted to expedite the appellate process and will not hesitate to dismiss an appeal where appropriate."
2 Plaintiff also contends that defendants are bound by the special interrogatories returned by the jury since no direct challenge was made to them in the post-trial motion and notice of appeal. We disagree. In an action in equity neither side is entitled to a trial by jury although the court in its discretion may impanel a jury to act in an advisory capacity on matters of fact. (Ill. Rev. Stat. 1975, ch. 110, par. 63.) The verdict is in no way binding upon the trial court (Sidwell v. Sidwell, 28 Ill. App.3d 580, 328 N.E.2d 595 (4th Dist. 1975)) and is not binding upon us on review, and, therefore, no motion directed against the finding or appeal therefrom is required.
Defendants have raised two issues for review: (1) whether a constructive trust can be imposed where the Statute of Frauds was pleaded by defendants as an affirmative defense to which plaintiff did not file a reply; and (2) whether awarding $2500 for loss of profits resulting from plaintiff's inability to use the land was appropriate. Our disposition of the case makes it unnecessary for us to consider the second issue.
Defendants' first contention, which concerns the applicability of the Statute of Frauds, is based upon a misunderstanding of the nature of a constructive trust and the provisions of the Statute of Frauds. First of all, we should point out that if the plaintiff in the instant case had sought to recover on the basis of an express, oral trust between plaintiff and defendants, the Statute of Frauds would have been a good defense to plaintiff's cause of action. (Ill. Rev. Stat. 1975, ch. 59, par. 9.) However, plaintiff sought to recover not on the basis of an express trust, but rather on the theory that the court, acting as a court of equity, should impose a constructive trust.
3 A constructive trust is not dependent upon an express agreement of the parties and is specifically exempted from the writing requirement of the Statute of Frauds. (Ill. Rev. Stat. 1975, ch. 59, par. 9; Crossman v. Keister, 223 Ill. 69, 79 N.E. 58 (1906) Giese v. Terry, 382 Ill. 34, 46 N.E.2d 90 (1943); 2 Restatement (Second) of Trusts § 406, at 327-28 (1959); 76 Am.Jur.2d Trusts § 194, at 427-428 (1975).) Thus, the Statute of Frauds is not a valid legal defense to a request for the imposition of a constructive trust.
4-6 A constructive trust is a restitutionary remedy to restore to a plaintiff property of which he has been unjustly deprived and to take from the defendant property which, if retained, would unjustly enrich him. (Restatement of Restitution § 160, comment d (1937).) To raise a constructive trust there must be proof of fraud or that advantage was taken of a "fiduciary" or "confidential" relationship. (Perry v. Wyeth, 25 Ill.2d 250, 184 N.E.2d 861 (1962).) To establish fraud there must exist allegations and proof that a party knowingly or intentionally made an untrue statement of fact for the purpose of inducing the other party to act and the other party rightfully believed and acted upon that statement to his detriment. (Broberg v. Mann, 66 Ill. App.2d 134, 213 N.E.2d 89 (2d Dist. 1965); Yates v. Cummings, 4 Ill. App.3d 899, 282 N.E.2d 261 (5th Dist. 1972).) A "confidential" relationship is merely another term to describe a "fiduciary" relationship. (Kochorimbus v. Maggos, 323 Ill. 510, 518, 154 N.E. 235 (1926).) Our examination of the cases reveal the terms to be used interchangeably. Perhaps it might be more accurate to say that the existence of a confidential relationship may impose upon the dominant party fiduciary obligations in his dealings with the servient party. "A confidential relationship exists in all cases where one reposes trust and confidence in another who thereby gains a resulting influence and superiority over the other." (Stone v. Stone, 407 Ill. 66, 77, 94 N.E.2d 855, 861 (1950).) The relationship may exist as a matter of law between individuals in certain relationships, for instance, trustee-beneficiary, guardian-ward, attorney-client, principal-agent. Chapter 12 of the Restatement of Restitution concerns acquisition of property by a fiduciary and states the general rule that a fiduciary who acquires property in violation of his duty as fiduciary holds the property upon a constructive trust. Thus, if one agrees to act as agent to purchase property "on behalf of the other" (Restatement of Restitution § 194(2) (1937)), a constructive trust results where that person purchases the property individually. "On the other hand, neither a constructive trust nor a resulting trust arises where one person agrees to purchase property and to resell it to another, where there is no fiduciary relation between the parties and the purchaser pays the purchase price with his own money and not by way of loan to the other, and the other had no pre-existing interest in the property." Restatement of Restitution § 194, Comment on Subsection (2) (1937).
7 The relationship may be "moral, social, domestic, or even personal." (Stone v. Stone.) However, where the relationship does not exist as a matter of law, the evidence must be clear and convincing so that it unequivocally and unmistakably leads to the conclusion that a fiduciary or confidential relationship exists. (Regnier v. Lay, 21 Ill.2d 177, 171 N.E.2d 629 (1961); Bennett v. Hodge, 374 Ill. 326, 29 N.E.2d 524 (1940).) Among the factors to be considered in determining whether a fiduciary relationship exists are: degree of kinship between the parties, if any; disparity in age, health, mental condition, education and business experience between the parties; and the extent to which the allegedly servient party entrusted the handling of his business and financial affairs to the other and reposed faith and confidence in him. (Kester v. Crilly, 405 Ill. 425, 91 N.E.2d 419 (1950); Cunningham v. Cunningham, 20 Ill.2d 500, 170 N.E.2d 547 (1960).) Furthermore, the existence of such a relationship does not of itself give rise ...