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Walker v. Iowa Marine Repair Corp.

OPINION FILED APRIL 16, 1985.

JAMES WALKER, PLAINTIFF-APPELLEE,

v.

IOWA MARINE REPAIR CORPORATION, INDIV. AND D/B/A MORRIS HARBOR SERVICE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Philip A. Fleischman, Judge, presiding.

PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

This action was brought by plaintiff, James Walker, pursuant to various provisions of the Merchant Marine Act, as amended, commonly known as the Jones Act. (46 U.S.C. § 688 et seq. (1982).) Plaintiff alleges in his complaint that he suffered injuries when he came into contact with the hydraulic rudder linkage system while working in the engine room aboard the Alice P. Klusak on February 8, 1983. The plaintiff was employed as an engineer on the ship at the time of the accident.

Additional facts are found in defendant's affidavit filed in support of its motion to transfer, to which plaintiff did not file a counteraffidavit. The affidavit recites that defendant is incorporated in Illinois with its principal places of business in Grundy County. Defendant's only other place of business is in Iowa. Defendant is not domiciled in Cook County, does not have any office or place of business in Cook County, and does not conduct any business in Cook County. At the time of the accident, the ship was operating on the Mississippi River a few miles north of St. Louis, Missouri, near Alton, Illinois, Madison County, approximately 250 miles from Chicago, Illinois. Plaintiff initially received medical assistance in Madison County, but his care was subsequently transferred to Galesburg Orthopedic Services, Ltd., in Knox County. Plaintiff resides in Galesburg and remains there through the present time. All of plaintiff's medical care thus occurred in either Knox or Madison County. Plaintiff was hired by defendant at its office in Grundy County, and all of his employment records are located there.

There were six crew members aboard the ship at the time of the injury. These persons are the only potential occurrence witnesses, and they reside in Madison County, Grundy County, Will County and Lebanon, Indiana. Other potential witnesses and their counties of residence include: the port engineer, La Salle County; defendant's vice-president, Grundy County; treating physicians, Knox and Madison Counties; and other unidentified persons, such as medical technicians, plaintiff's acquaintances and previous doctors, all of whom are probably located outside of Cook County.

Plaintiff filed his complaint in Cook County in February of 1984. On March 6, 1984, defendant filed a general appearance and answer denying liability. Thereafter, on March 27, 1984, defendant filed its motion to transfer for forum non conveniens to either Grundy or Knox County. Defendant's motion was supported by an affidavit of its executive vice-president, who handled all communications and correspondence relative to this suit, and a compilation of court statistics outlining the average time to termination for cases filed in the circuit courts of Illinois. Plaintiff's response to defendant's motion did not address the merits of defendant's argument, but rather asserted that defendant waived its right to object to venue by failing to so move prior to generally appearing and answering. Defendant filed a reply with supporting authority. On July 18, 1984, the trial court entered an order denying defendant's motion to transfer.

Defendant's petition for leave to appeal under Supreme Court Rule 306(a)(1)(ii) was granted by this court on September 18, 1984. No transcript of the hearing on defendant's motion to transfer was included in the record certified to this court, and defendant's petition to supplement the record on appeal with said transcript was denied on October 30, 1984. The three issues presented for review are: (1) whether the absence of the trial court transcript precludes this court from properly reviewing the merits of defendant's appeal based upon an "abuse of discretion" standard of review; (2) whether defendant waived its right to file a motion to transfer for forum non conveniens by filing a general appearance and answering; and (3) whether the trial court abused its discretion in denying defendant's motion.

• 1 We first determine whether the absence of the transcript from the hearing on the motion to transfer precludes proper review in this court. The very nature of an appeal dictates that the reviewing court must have a sufficient record before it to determine whether the error claimed by the appellant exists. The burden rests on the appellant to provide a sufficient record to support the claim of error, and in the absence of such a record, the reviewing court will presume that the trial court's order was in conformity with established legal principles and had a sufficient factual basis. (Foutch v. O'Bryant (1984), 99 Ill.2d 389, 391-92, 459 N.E.2d 958.) Any doubts arising from the completeness of the record are resolved against the appellant. 99 Ill.2d 389, 392.

In Foutch, the defendants had filed a motion to vacate a judgment entered against them at an ex parte hearing. The order of the trial court denying the motion noted that the court had heard evidence, heard arguments, and was advised in the premises. The record before the supreme court did not include a transcript from the hearing; it contained only the complaint, the defendant's answer denying some allegations and admitting others, the judgment order, the defendant's motion to vacate, and the order denying the motion. The supreme court stated: "As there is no transcript of the hearing on the motion to vacate here, there is no basis for holding that the trial court abused discretion in denying the motion." (99 Ill.2d 389, 392.) The court found Skaggs v. Junis (1963), 28 Ill.2d 199, 190 N.E.2d 731, dispositive of the issue and stated as follows:

"It must be presumed that the denial of the motion was in conformity with the law and was properly supported by evidence. In Skaggs v. Junis (1963), 28 Ill.2d 199, the plaintiff complained because the record failed to disclose the evidence heard by the trial court in support of an award made by the court. The plaintiff contended that it must be assumed that none was heard and that the award was, therefore, improper. In rejecting the contention, this court held: `The court stated that its order was based upon "the Court having heard the evidence and the arguments of counsel and being fully advised in the premises." In such a situation, unless there is a contrary indication in the order or in the record, it is presumed that the court heard adequate evidence to support the decision that was rendered. (Smith v. Smith, 36 Ill. App.2d 55.) Where it is alleged that the evidence presented was actually insufficient to support the court's finding, the burden of preserving said evidence rests with the party who appeals from said order. No record of the evidence heard on May 23 and 24 regarding the commission's claim is before this court and, therefore, it must be assumed that the evidence that was heard fully supported the court's finding that the commission was entitled to $3,989.40.' (28 Ill.2d 199, 201-02.) The holding in Skaggs applies here." Foutch v. O'Bryant (1984), 99 Ill.2d 389, 393-94.

We find Foutch inapposite here because the record in the instant case contains all the relevant facts presented. Additionally, the trial court here could only have based its ruling on the pleadings and affidavits in the record presented, thus rendering the transcript nothing more than a memorialization of the arguments of the attorneys. The very issue that plaintiff contends precludes review was addressed in DeVries v. Bankers Life Co. (1984), 128 Ill. App.3d 647, 471 N.E.2d 230. The DeVries court rejected the plaintiff's argument that the defendant had waived any error in the denial of its motion to dismiss for forum non conveniens by failing to include a report of proceedings in the record. The DeVries court interpreted Foutch and other similar cases as establishing the principle that the absence of a transcript "precludes review of only those issues whose merits depend on the omitted matters, such as questions concerning the sufficiency of the evidence [citation] or issues relating to the actual conduct of a hearing [citation]." 128 Ill. App.3d 647, 650.

The complaint on appeal here addresses the propriety of the trial court's denial of defendant's motion to transfer. The order does not recite that "evidence was heard." Rather, the order recites that the court read the briefs, which are included in the record, heard arguments of counsel, which are not evidence and a transcript of which is not necessary to this appeal, and was fully advised in the premises. The defendant's motion contains an uncontroverted affidavit, which is in the record. Also, the record contains a copy of the complaint, defendant's answer and affirmative defense, defendant's motion to transfer and supporting authority and affidavit, plaintiff's reply and defendant's response. A transcript of the hearing on the motion containing the arguments of counsel, based upon the briefs which are in the record, is not necessary to support defendant's position on appeal. The fact that the trial court may have espoused certain reasons for its order not appearing on the face of the document does not support the necessity of a transcript on appeal where, as here, the record contains everything that was presented to the judge in support of or in opposition to the motion. All of the relevant facts, and evidence via defendant's affidavit, are included in the record here presented. Additionally, the briefs of the parties refer only to those facts contained in the complaint, affidavit and memoranda filed, thus obviating the need for this court to resort to specific arguments made by counsel at the hearing. (DeVries v. Bankers Life Co. (1984), 128 Ill. App.3d 647, 651, 471 N.E.2d 230.) The merits of defendant's appeal do not necessitate reference to the transcript. We find, therefore, that the failure to include the transcript in the record does not preclude appellate review.

• 2 The second issue for review is whether the filing of a general appearance results in a waiver of a party's ability to move to transfer for forum non conveniens on an intrastate basis. The gist of plaintiff's argument here is premised upon the assertion that, because defendant's motion is not entitled "motion to dismiss for forum non conveniens," it is actually an objection to the propriety of venue in Cook County seeking a transfer to a proper forum. Alternatively, plaintiff asks this court to equate a motion to transfer for forum non conveniens with a section 2-104 objection to venue. The argument goes, consequently, that defendant's general appearance, as opposed to an immediate objection to venue, is a waiver under section 2-104 of the Code of Civil Procedure. (Ill. Rev. Stat. 1983, ch. 110, par. 2-104(b).) Plaintiff further asserts that his argument is supported by the distinction drawn in Supreme Court Rule 306 for discretionary appeals "from an order * * * denying a motion to dismiss on the grounds of forum non conveniens" (87 Ill.2d. R. 306(a)(1)(ii)) and "from an order * * * granting or denying a motion for a change of venue based on the assertion that the defendant is not a `resident' of the county in which the action was commenced, * * * and no other legitimate basis for venue in that county has been offered by the plaintiff." 87 Ill.2d R. 306(a)(1)(iv).

Plaintiff's attack on defendant's appeal, however, fails to note that Rule 306 was amended September 16, 1983, effective October 1, 1983. The amendment was ordered by our supreme court simultaneously with its filing of Torres v. Walsh (1983), 98 Ill.2d 338, 456 N.E.2d ...


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