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04/18/95 YURI CHERNY v. THELMA FUENTES

April 18, 1995

YURI CHERNY, SVETLANA CHERNY, AND SERGE CHERNY, A MINOR BY HIS FATHER AND NEXT FRIEND, YURI CHERNY, PLAINTIFFS-APPELLANTS,
v.
THELMA FUENTES, BORIS STULOV, AND 303 CAB ASSOCIATION, INC., DEFENDANTS (THELMA FUENTES, DEFENDANT-APPELLEE AND SEPARATE APPELLANT; BORIS STULOV, DEFENDANT-APPELLEE AND SEPARATE APPELLEE).



Appeal from the Circuit Court of Cook County. The Honorable Stuart A. Nudelman and Howard M. Miller, Judges Presiding.

Released for Publication May 26, 1995.

The Honorable Justice DiVITO delivered the opinion of the court. Scariano, P.j., and Hartman, J., concur.

The opinion of the court was delivered by: Divito

JUSTICE DiVITO delivered the opinion of the court.

This is a personal injury action arising out of an automobile accident. At the first trial, a directed verdict was entered against one of the plaintiffs as regards both defendants, and later the jury was unable to reach a verdict regarding the other plaintiffs, resulting in a mistrial. At the second trial, a directed verdict was entered in favor of one of the defendants against both remaining plaintiffs, and later the jury was unable to reach a verdict regarding the other defendant. At both trials, the courts refused to enter an order vacating the directed verdicts following the declarations of mistrial. These appeals followed the second court's granting of Supreme Court Rule 304(a) language. (134 Ill. 2d R. 304.) For reasons that follow, we affirm in part and reverse in part.

On December 15, 1987, Thelma Fuentes and Boris Stulov (defendants) were involved in an automobile accident at the intersection of Devon Avenue and Lemay Street in Chicago. Yuri Cherny, Svetlana Cherny, and Serge Cherny (plaintiffs) were passengers in Stulov's vehicle. On June 21, 1988, plaintiffs filed their complaint against defendants. *fn1 On September 1, 1988, defendant Fuentes filed her answer denying all material allegations of the complaint regarding her alleged negligence. On March 9, 1989, defendant Stulov filed his answer, also denying all material allegations regarding his alleged negligence. On the same day, Stulov filed a contribution counterclaim against Fuentes.

The case proceeded to trial on June 7, 1993. On that date, the circuit court entered a directed verdict in defendants' favor against plaintiff Serge Cherny. In denying a motion for reconsideration, the court stated that plaintiff Serge Cherny had been instructed to be in court pursuant to a Rule 237 notice; that he did not appear in court to testify on his own behalf or offer any excuse; that he had never been deposed; that defendants had a right to cross-examine him regarding his injuries; that the evidence presented on his behalf was not enough to establish that he was injured; and that the directed verdict entered against him the previous day would stand.

Following the presentation of evidence and closing arguments, the jury was deadlocked and the court declared a mistrial.

The action proceeded to trial a second time on August 17, 1993. On that date the court entered an order denying plaintiffs' motion to vacate the directed verdict entered against Serge Cherny at the first trial. On August 17, 1993, plaintiffs' counsel made his opening statement. Counsel stated, among other things, that Fuentes suddenly moved into the right lane in front of Stulov's vehicle; that Stulov "had no chance at all to move to the right or to the left"; that Stulov "simply crashed at a speed of 25 to 35 miles per hour"; and that Stulov "hit his brake but there was no way he could avoid the collision." Stulov's counsel moved for a directed verdict based on plaintiffs' counsel's opening statement, but the court denied the motion.

At the close of all the evidence, Stulov's counsel asked the court to reconsider its prior ruling denying his motion for a directed verdict based on plaintiffs' counsel's opening statement. On August 25, 1993, the court did so and vacated its prior ruling and directed a verdict in Stulov's favor against plaintiffs. On August 27, 1993, the jury having deadlocked, the court declared a mistrial and denied the joint oral motion of plaintiffs and Fuentes to vacate all orders entered at the second trial.

On September 9, 1993, plaintiffs filed a post-trial motion to vacate all orders entered at the first trial, and a brief in support thereof. The court denied the motion on September 13, 1993. On October 6, 1993, the court entered an order finding that the directed verdict entered against Serge Cherny on June 7, 1993, and the order of September 13, 1993, denying the plaintiffs' post-trial motion to vacate all orders entered at the first trial were final and appealable and that there was no just reason to delay enforcement or appeal of those orders. On October 12, 1993, plaintiffs filed their notice of appeal from these orders.

On September 9, 1993, plaintiffs also filed a post-trial motion for reconsideration of the order of August 27, 1993, denying their oral motion to vacate all orders entered at the second trial, and a brief in support thereof. The court denied this motion on November 22, 1993, and entered Rule 304(a) language. On December 9, 1993, plaintiffs filed their second notice of appeal from these orders.

On December 22, 1993, defendant Fuentes filed her notice of separate appeal from the order of August 25, 1993, entering a directed verdict for Stulov against plaintiffs, and from the order of August 27, 1993, denying the joint oral motion of plaintiffs and Fuentes to reconsider and vacate all orders entered at the second trial. The appeals were consolidated by this court.

Plaintiffs first assert that the circuit court improperly directed a verdict against Serge Cherny in the first trial. They argue that compelling the appearance of a party litigant is a matter for the sound discretion of a court rather than a mandatory requirement. In this case, there was no objection to the introduction of medical evidence, and the court allowed plaintiffs' counsel to introduce evidence on Serge Cherny's behalf without mandating his appearance. Plaintiffs argue that because he was a passenger, there is no issue as to his liability, and that after the allowed testimony the only issue for the jury to determine was the amount of damages to award.

Defendants respond that Serge Cherny has not provided an adequate record for this court's review and, in the absence of such a record, the judgment of the circuit court must be presumed correct. Plaintiffs reply that they did in fact provide an adequate record for review. They argue that the record provided includes the judge's orders, plaintiffs' motions, and defendants' responses, as well as a complete statement of the judge's reasons for directing a verdict.

It is the duty of the appellant to provide an adequate record for the appellate court. ( Higgins v. Columbia Tool Steel Co. (1979), 76 Ill. App. 3d 769, 776, 395 N.E.2d 149, 154, 32 Ill. Dec. 202.) If the record provided does not constitute an adequate basis for a determination of the propriety of the circuit court's judgment, then the judgment is presumed correct and the circuit court must be affirmed. Jackson v. Naffah (1993), 241 Ill. App. 3d 1043, 1045, 609 N.E.2d 958, 960, 182 Ill. Dec. 424.

Although it is true that Supreme Court Rule 323(a) provides that an appellee "may serve on the appellant a designation of additional portions of the proceedings that the appellee deems necessary for inclusion in the report of proceedings" (134 Ill. 2d R. 323(a)), and neither of the appellees here supplemented the record when given the opportunity, it is the appellants ...


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