Appeal from the Circuit Court of Winnebago County. No. 09-L-410. Honorable J. Edward Prochaska, Judge, Presiding.
Mary I. Wood and D. Phillip Kesler, both of MacCloskeyKesler & Associates, LLP, of Rockford, for appellant
Kerry F. Partridge and Ifeanyi C. Mogbana, both of City of Rockford Department of Law, of Rockford, for appellee.
concurred in the judgment and opinion. McLaren, Justice dissented, with opinion.
SCHOSTOK, PRESIDING JUSTICE.
[¶1] On the eve of trial, the plaintiff, Jane Meade, and the defendant, the City of Rockford (City), reached a settlement agreement and the trial date was stricken. The plaintiff subsequently signed a written settlement agreement drafted by the City. However, when the settlement was presented to the city council (City Council or Council) a few weeks later, that body (including some of the Council members who had been present at the settlement conference and had approved the settlement offer at that time) voted to reject the settlement agreement. The plaintiff moved to enforce the settlement agreement, and the circuit court of Winnebago County denied the motion but certified certain questions pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010). We accepted the appeal to resolve the certified questions, and now answer all of them in the negative.
[¶3] The plaintiff alleges that she was injured on May 10, 2009, when she was standing on the parkway near a street in her Rockford neighborhood and the ground gave way, causing her to fall into a sinkhole. She filed suit against the City in 2010. At the time of the events relevant herein, trial was set to begin on January 27, 2014.
[¶4] On January 14, 2014, the parties appeared in court for a pretrial settlement conference. Local Rule 11.03 of the Winnebago County circuit court requires parties appearing for such a conference to have " settlement authority," defined as " the ability to meaningfully negotiate toward a settlement agreement on behalf of a party and, if successful, to bind that party to an enforceable settlement agreement." 17th Judicial Cir. Ct. R. 11.03 (adopted Feb. 13, 2013). At that conference, the City offered $200,000; the plaintiff rejected the offer.
[¶5] On January 24, 2014 (the last business day before the trial was set to start), the parties again met for a pretrial settlement conference. The parties' attorneys were physically present for the conference. The plaintiff and all five members of the Rockford City Council's Code and Regulation Committee (Committee) were present by telephone. The City offered $400,000, which the plaintiff rejected. The City's attorney conferred by phone with all five Committee members. He then offered $600,000. In interrogatory answers, the City conceded that, on January 24, all five of the Committee members approved this offer. The offer was accepted by the plaintiff. The trial court docketed the case as settled and struck the trial date.
[¶6] On February 6, 2014, the City's attorney sent the plaintiff a draft settlement agreement and release. The plaintiff signed it in the presence of a notary on February 10, 2014, and returned it to the City. The settlement agreement did not state that it was subject to approval by the City Council.
[¶7] On February 24, 2014, the settlement was presented to the City Council for approval. At that time, two of the Committee members who had previously approved the settlement on January 24 changed their votes and voted to reject it. Another
Committee member was absent and did not cast a proxy vote. The remaining two Committee members voted consistently with their previous positions to approve the settlement. The vote of the City Council was 7 to 5 against approving the settlement. It is undisputed that, if all the Committee members had been present at the City Council meeting and had voted consistently with their earlier positions, the settlement would have been approved.
[¶8] The facts set out above are undisputed and thus are properly subject to our consideration. Equally important to this case is what is not before us, however. This is an interlocutory appeal and the record is relatively sparse. Both parties make assertions in their briefs for which there is no support in the record. For instance, the plaintiff's attorney asserts that the Committee settles all the City's cases (at least all the ones with which the attorney has been involved), and implies that the Committee is authorized to act on the City's behalf. However, the record does not contain any explicit authorization or delegation by the City Council allowing the Committee to act on the City's behalf to settle cases. Nor does the record contain any evidence (such as an affidavit or record regarding other cases previously settled by the Committee) showing that the City had a custom or practice of allowing the Committee to settle all cases against the City. For its part, the City asserts that, at the settlement conference, it told everyone that it would have to have the settlement agreement approved by the full City Council. However, there is no record of any such statement, nor any bystander's report reflecting this, and the plaintiff disputes this assertion. (The only report of proceedings in the record is of the oral argument on the motion to enforce the settlement.) As none of these assertions is supported by the record, we do not consider them.
[¶9] On February 26, the plaintiff filed a motion to enforce the settlement. In May 2014, after the motion was fully briefed, the trial court heard oral argument and denied the motion.
[¶10] On June 13, 2014, the trial court issued an order certifying three questions. We granted leave to appeal to resolve these questions, which are set out below. First, however, we find it useful to set out certain statutes and ordinances referred to in the certified questions. Section 3.1-40-40 of the Illinois Municipal Code provides:
" Vote required. The passage of all ordinances for whatever purpose, and of any resolution or motion (i) to create any liability against a city or (ii) for the expenditure or appropriation of its money shall require the concurrence of a majority of all members then holding office on the city council, *** unless otherwise expressly provided by this Code or any other Act governing the passage of any ordinance, resolution, or motion." 65 ILCS 5/3.1-40-40 (West 2012).
Section 2-277 of the Rockford Code of Ordinances (as amended) provides:
" Settlement of suits and claims.
The legal director shall have authority to make settlement for less than [$12,500] of lawsuits and controverted claims against the city. For the settlement of all other lawsuits, the legal director shall obtain the consent of the city council."
[¶11] The trial court certified the following questions:
" 1. Does the Illinois Municipal Code, 65 ILCS 5/3.1-40-40, exclude settlement of ongoing litigations [ sic ] from its requirement for 'approval of all members holding office on the city council [for the] passage of any resolution ...