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First Marblehead v. Monica E. Ribbeck

August 10, 2011

FIRST MARBLEHEAD,
PLAINTIFF-APPELLEE,
v.
MONICA E. RIBBECK,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County No. 06 L 802 Honorable Brigid Mary McGrath, Judge Presiding.

The opinion of the court was delivered by: Justice Murphy

JUSTICE MURPHY delivered the judgment of the court, with opinion. Presiding Justice Quinn and Justice Steele concurred in the judgment and opinion.

OPINION

¶ 1 Defendant Monica Ribbeck appeals from an order of the circuit court of Cook County granting the motion to enforce settlement filed by plaintiff, First Marblehead Corp. On appeal, defendant contends that the court erred by granting plaintiff's motion because the settlement agreement at issue is not an enforceable contract, and plaintiff contends that defendant and her counsel should be sanctioned pursuant to Illinois Supreme Court Rule 375(b) (Ill. S. Ct. R. 375(b) (eff. Feb. 1, 1994)). For the reasons that follow, we affirm the order of the circuit court and impose sanctions against defendant and her appellate counsel.

¶ 2 BACKGROUND

¶ 3 On January 24, 2006, plaintiff filed a complaint in which it asserted that defendant had failed to make required payments to it under the terms of a number of promissory notes, and it requested a judgment in the amount of $95,699.77, plus accruing interest, attorney fees, and court costs. On February 18, 2009, defendant's counsel sent a letter to plaintiff's counsel relating that defendant would agree to "make a lump sum payment of $45,000.00 as a final, full settlement of all claims made against her in this case" and that the offer would remain open for acceptance until March 6, 2009. On February 24, 2009, plaintiff's counsel sent a letter to defendant's counsel relating that plaintiff "has agreed to accept [defendant]'s offer of $45,000.00 as a final and full settlement of this account." On March 5, 2009, defendant's counsel sent a letter to plaintiff's counsel relating that plaintiff had a substantial change in her financial condition over the previous two weeks and now only had $35,000 with which to settle the case.

¶ 4 On March 12, 2009, plaintiff filed a motion to enforce settlement, in which it asserted that it had accepted defendant's offer of a lump-sum payment of $45,000 to fully settle its claims against her and requested the court enforce the settlement agreement, dismiss the matter with leave to reinstate subject to defendant's immediate lump-sum payment of $45,000, sanction defendant for frivolous delay, and enter any other order which the court deemed fair and just. On April 10, 2009, defendant filed a response to plaintiff's motion, in which she asserted that the parties had not reached an agreement because plaintiff's letter from February 24, 2009, amounted to a counteroffer to the settlement offer she had made in the letter from February 18, 2009, and plaintiff subsequently filed a reply. On June 8, 2009, the circuit court entered an order granting plaintiff's motion to enforce settlement.

¶ 5 ANALYSIS

¶ 6 I. Settlement Agreement

¶ 7 On appeal, defendant contends that the settlement agreement is unenforceable because its terms are too indefinite and uncertain. Plaintiff first responds that this court must presume the circuit court's ruling had a sufficient legal and factual basis because defendant has failed to present a sufficiently complete record.

¶ 8 In its order granting plaintiff's motion to enforce settlement, the circuit court stated that it had conducted a hearing on plaintiff's motion prior to granting it. The record, however, does not include a report of proceedings, a bystander's report, or an agreed statement of facts of that hearing. Thus, the record only discloses that the circuit court granted plaintiff's motion, and does not include the evidence or arguments presented to the court at the hearing or the court's findings of fact or reasons for granting the motion. As such, any doubts that arise from the incompleteness of the record will be resolved against defendant, the appellant, who had the burden to present a sufficiently complete record. Corral v. Mervis Industries, Inc.,217 Ill. 2d 144, 156-57 (2005).

¶ 9 In any event, defendant has waived her claim that the settlement agreement is unenforceable because its terms are too indefinite and uncertain by failing to raise this argument before the circuit court. Arguments not raised before the circuit court cannot be raised for the first time on appeal and are deemed waived. Robidoux v. Oliphant, 201 Ill. 2d 324, 344 (2002). The record shows that defendant did not assert that the alleged agreement was unenforceable due to the indefiniteness of its terms in her response to plaintiff's motion to enforce the settlement agreement, but instead asserted that the parties had not reached an agreement because plaintiff's alleged acceptance was actually a counteroffer. In addition, defendant asserted in her motion to reconsider that the court should reconsider its order because it did not consider her change in financial conditions when it granted plaintiff's motion, and did not assert the claim she now raises on appeal. As such, defendant has waived this claim on appeal.

¶ 10 Moreover, the terms set forth in the alleged settlement agreement are sufficiently clear and definite to constitute an enforceable contract. In order for a contract to be enforceable, its essential terms must be definite and certain, and such terms are sufficiently definite and certain if a court is able to ascertain what the parties have agreed to under proper rules of construction and applicable principles of equity. Midland Hotel Corp. v. Reuben H. Donnelley Corp., 118 Ill. 2d 306, 314 (1987).

ΒΆ 11 Defendant first asserts that the settlement agreement's terms are too indefinite and uncertain because a court could not ascertain whether she was to make the $45,000 payment to plaintiff in installments, and if so, in what amounts. The record shows, however, that defendant offered to "make a lump sum payment of $45,000.00 as a final, full settlement," and plaintiff accepted that offer. Thus, there is no uncertainty as to whether the $45,000 was to be ...


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