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07/22/87 Frisch Contracting Service v. Personnel Protection

July 22, 1987





511 N.E.2d 831, 158 Ill. App. 3d 218, 110 Ill. Dec. 654 1987.IL.1042

Appeal from the Circuit Court of McHenry County; the Hon. Susan Fayette Hutchinson, Judge, presiding.


JUSTICE UNVERZAGT delivered the opinion of the court. REINHARD and WOODWARD, JJ., concur.


The defendant, Personnel Protection, Inc., appeals from the order of the circuit court which entered judgment in the sum of $7,331.50 in favor of the plaintiff, Frisch Contracting Service Company, based on the breach of a construction contract implied in law. The defendant sets forth three arguments on appeal. First, the defendant maintains that the plaintiff's award must be modified to account for reductions in labor, delivery and machinery, given the trial court's finding that the plaintiff only used 360 tons, rather than the original complained of 601.7 tons, of gravel to complete the work under the contract. The defendant also argues that the trial court erred in its application of the theory of quantum meruit by failing to consider the value of the benefits conferred on the defendant. In the alternative, the defendant urges that we must reverse the trial court's order absent a finding of the defendant's acquiescence or acceptance of the contract's terms, purportedly a prerequisite to an implied contract. For the reasons set forth below we affirm the decision of the trial court.

On May 24, 1984, the plaintiff brought suit against the defendant seeking damages for breach of an oral contract for services the plaintiff performed in excavating and enlarging the defendant's parking lot. On December 11, 1985, the plaintiff amended the complaint to include recovery under express contract and recovery under the theory of quantum meruit. The following forms the basis for the plaintiff's amended complaint.

Prior to April 1983, the defendant entered into a contract with a general contractor to build a new facility and parking lot. The plaintiff, a subcontractor, performed work on the parking lot. Subsequently, the defendant's agent entered into a contract with the general contractor to excavate an additional parking area. The general contractor's agent told the plaintiff to contact Mr. Coss, the defendant's agent, to enter into an agreement as to this additional work. Coss then directed the plaintiff to commence construction. After the plaintiff performed the additional work pursuant to the agreement, the defendant's president allegedly ratified the actions of Coss, its agent, and agreed to pay for the additional work. Count II realleged the same scenario, but sought recovery under the theory of quantum meruit for the reasonable value of the plaintiff's services.

The defendant answered the complaint, and the court held a hearing on March 8, 1986. On June 23, 1986, the court issued a memorandum opinion in which it found that although the parties did not have an express contract to perform the parking lot extension work, the trial testimony indicated the existence of a contract implied in law, and, as such, the court held the defendant responsible to compensate the plaintiff for benefits received. Specifically, the court found these benefits to include the defendant's present and future ability to use the extension areas as well as the reworking of the drainage areas. The court noted that the plaintiff's time sheets demonstrated a reasonable time to perform the work, although it questioned the material used. In this regard, the court found that the plaintiff had used a quantity of gravel/material in the amount of 360 tons, rather than the complained of 601.7 tons, thereby requiring an adjustment of the original invoices. On July 21, 1986, the court entered an order in favor of the plaintiff in the amount of $7,331.50. Subsequently, the court denied the defendant's motion to reconsider. The defendant then filed this timely appeal.

On appeal, the defendant initially argues that the plaintiff's award must be modified to account for the reductions in labor, delivery and machinery required to haul and spread 360 tons of gravel, an amount which is 59.8% of the originally complained of 601.7 tons. It is the defendant's position that had the trial court accounted for these reduced costs, the judgment would have been 59.8% of the amount alleged as due, or no more than $5,359.50. It is our opinion, however, that this argument is mere conjecture given the record the defendant submitted on appeal.

The very nature of an appeal dictates that the reviewing court have a sufficient record before it to determine if the error claimed by the appellant exists. (Walker v. Iowa Marine Repair Corp. (1985), 132 Ill. App. 3d 621, 624.) 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.) Any doubts arising from the completeness of the record are resolved against the appellant. (99 Ill. 2d 389, 392.) Affirmance is dictated if the record omits crucial facts. Rosenblatt v. Michigan Avenue National Bank (1979), 70 Ill. App. 3d 1039, 1042.

In the present case the defendant has failed to file a report of proceedings and has, thus, failed to supply the court with any of the evidence adduced at trial upon which the trial court relied. The failure to present a report of proceedings does not require automatic dismissal or affirmance where issues can be resolved on the record as it stands. (Paine, Webber, Jackson & Curtis, Inc. v. Rongren (1984), 127 Ill. App. 3d 85, 90.) However, in the absence of the report of proceedings, issues raised for which evidence at trial would be necessary to the determination of the appellate court are not subject to review. 127 Ill. App. 3d 85, 90.

It is our opinion that the defendant's claimed reduction of labor and machinery is a factual issue requiring a review of evidence concerning the reduction, if any, of the amount of labor and machinery required using less material. We discern no proof in the record for the defendant's assertion that 360 tons of gravel requires 59.8% of the hauling of 601.7 tons of gravel. Absent evidence indicating, at the very least, the relationship between material and man-hours, we cannot begin to review such an assumption.

We also find that the defendant's second argument, namely, that the court erred by failing to consider the value of the benefit to the defendant in determining the plaintiff's award, concerns a factual issue which requires evidence in order for us to review the trial court's decision. The amount of damages is purely a factual issue, and a court of review may not set aside the determination of damages unless it is contrary to the manifest weight of the evidence. (Ellis v. Photo America Corp. (1983), 113 Ill. App. 3d 493, 501.) As the defendant has presented no evidence or documents to establish the value of the benefit to the defendant, we have no basis upon which we can review such a determination. Similarly, we find that the defendant's third argument, that the court erroneously found ...

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