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Lorts v. Illinois Terminal R.r.

OPINION FILED FEBRUARY 1, 1980.

ROBERT C. LORTS, PLAINTIFF-APPELLANT,

v.

ILLINOIS TERMINAL RAILROAD, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Madison County; the Hon. WILLIAM J. BEATTY, Judge, presiding.

MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Defendant, Illinois Terminal Railroad Company, agreed to pay plaintiff, Robert C. Lorts, $700,000 in settlement of a disputed claim. Plaintiff brought the instant action in the Circuit Court of Madison County to recover interest from the date the court entered a consent judgment following the settlement to the date the full amount of the settlement and interest was ultimately paid. From the judgment of the trial court denying interest, plaintiff appeals. Defendant's motion to dismiss the appeal for plaintiff's alleged failure to provide a complete record on appeal has been taken with the case.

The record on appeal consists of two volumes, the common law record and a document entitled "Report of Proceedings Pursuant to Supreme Court Rule 323(c)." No issue is raised regarding the propriety of this document as a Rule 323(c) report of proceedings (Ill. Rev. Stat. 1977, ch. 110A, par. 323(c)).

Plaintiff's cause of action against defendant had proceeded to trial before a jury. During the trial on November 29, 1977, the parties agreed to settle the cause. Under this agreement, defendant was to pay plaintiff $700,000. On November 30, 1977, a consent judgment was entered pursuant to the settlement.

Defendant satisfied the $700,000 judgment in installments, the last one being paid January 30, 1978, and a satisfaction of judgment was executed on this date. This document bore a typewritten note that the parties disputed whether defendant owed plaintiff interest "from the date of the judgment to the date of payment," such dispute to be resolved through subsequent negotiations or litigation.

The matter could not be resolved by negotiation and plaintiff commenced the instant action by filing a citation to discover assets against defendant on August 21, 1978. Defendant moved to quash the citation, asserting the judgment had been satisfied and requesting a hearing on the matter.

The cause was heard November 3, 1978. The report of proceedings filed pursuant to Rule 323(c) states that defendant's attorney at the time of the settlement negotiations was the only sworn witness. Mr. Stutsman testified that it was decided a judgment order would be entered "reciting and confirming" the settlement agreement. The witness stated there was no time limit mentioned for payment of the $700,000, but that payment was to be made within a "reasonable" time. He believed there was "absolutely no understanding or agreement that any interest would be paid on this sum."

Mr. Stutsman stated he believed "interest is not added to such a settlement sum and is never added and has never in the experience of the witness been added to a settlement that he has been involved in." He believed this to be accepted practice in the Circuit Court of Madison County. He testified further that during the first 30 days following the settlement, plaintiff's attorney asked him when payment would be made and finally demanded immediate payment. At that time, however, nothing was said about accrual of interest.

The court provided plaintiff's attorney an opportunity to comment on Mr. Stutsman's testimony. While not under oath, Mr. Lakin recalled that the judgment was entered at his insistence after discussions about when payment would be forthcoming proved fruitless. He stated that during negotiations he adopted the position that settlement proceeds should be forthcoming within 10 days. Mr. Stutsman, without agreeing to the 10-day limit, indicated he would attempt to comply. Mr. Lakin stated there was no agreement that interest would or would not be paid.

Mr. Lakin stated the instant case was the first in which he had insisted a consent judgment be entered as part of the settlement agreement. It was his "understanding" that there were instances in which interest was added to settlement amounts subsequent to entry of judgment without a specific agreement regarding interest accrual. He did not recall whether he would claim interest at the time of settlement. He did recall communicating his client's demand for interest approximately 10 days after entry of the consent judgment.

The record on appeal contains no written manifestation of the terms of the agreement between plaintiff and defendant, nor indication that such a writing exists, save the judgment order itself. The text of the order reveals absolutely nothing about the terms of the settlement agreement, except its amount.

On November 3, 1978, after the hearing on plaintiff's demand for interest, the trial court filed an order denying interest. The court set forth the following findings: (1) according to custom and practice, settlements never included interest unless interest was mentioned and agreed upon; and (2) no evidence had been offered that the instant settlement amount had not been paid within a "reasonable" time, and, in view of the amount of the judgment, 60 days was a reasonable time.

• 1 We first consider defendant's motion to dismiss this appeal, which this court ordered taken with the case. Defendant seeks dismissal because plaintiff has failed to provide a proper record on appeal. We agree with defendant that the record as submitted by plaintiff is so incomplete that the questions here presented can not be fully understood. It was plaintiff's duty and obligation as appellant to take all necessary steps to ensure that a proper record was prepared. (Ladenheim v. McCormick (1978), 66 Ill. App.3d 188, 191, 383 N.E.2d 751, 754.) Where appellant's shortcomings in this regard prevent review of the findings of the lower court, the court on review must presume that the evidence supported the judgment below. (Ladenheim v. McCormick; Angel v. Angelos (1976), 35 Ill. App.3d 905, 907, 342 N.E.2d 748, 749.) Further, the fact that plaintiff, in his praecipe, requested that the clerk of the court prepare transcripts of all proceedings, did not shift his burden as appellant to present all material essential to disposition of the appeal. Angel v. Angelos (1976), 35 Ill. App.3d 905, 907, 342 N.E.2d 748, 750.

• 2 We agree with defendant that plaintiff should have provided transcripts of all proceedings below. However, the record as supplemented by defendant is not insufficient to resolve the issues raised, as was the case in Ladenheim. ...


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