dissenting:
As a preliminary matter, I do “dispute the majority’s view that the record before us is not sufficient to enable us to review the propriety of the trial court’s action on Hartman’s motion to enforce settlement.” 309 Ill. App. 3d at 461.
Did plaintiffs lawyer, now disbarred, attempt to settle this case without plaintiffs consent after receiving an adverse ruling? Where an alleged settlement is made out of court, there is a presumption that the client did not consent and is accordingly not bound, unless the opponent affirmatively establishes express authority. Brewer v. National R.R. Passenger Corp., 165 Ill. 2d 100, 105-06, 649 N.E.2d 1331, 1334 (1995).
Defendant argues that where a settlement is made in open court the presumption is that there was authority to settle. Szymkowski v. Szymkowski, 104 Ill. App. 3d 630, 633, 432 N.E.2d 1209, 1211 (1982); Glassman, 257 Ill. App. 3d at 103-04, 628 N.E.2d at 668 (oral settlement agreement, terms formally spread of record, court questioned parties). There is no indication in this record, however, that this settlement was made in open court. The settlement was not made a part of a judgment. The entry of a docket order “[cjase [s]ettled” is not formally spreading the terms of record. 309 Ill. App. 3d at 460. The record does not indicate that plaintiff was present on November 10, when the “[cjase Mettled” entry was made. 309 Ill. App. 3d at 460.
Nor was plaintiff present on December 7, when the motion to enforce settlement was granted. The attorneys and a court reporter were present on December 7, but no record was made. Plaintiff did not call any witnesses on December 7. The majority states, “We know, through examination of the common-law record, that the trial court conducted a hearing on the motion.” 309 Ill. App. 3d at 460. That is incorrect. The court’s order simply recites “cause called for hearing” and “motion allowed.” There is no indication that any argument was made. At any rate, under Brewer, plaintiffs attorney did not have the power to confess this issue by any argument on December 7.
This is another case like People v. McDuffee, 299 Ill. App. 3d 283, 701 N.E.2d 532 (1998), where the appellee seeks to insinuate that something outside the record occurred in the trial court and that appellant should lose because that “something” is not included in the record. According to appellee’s brief “we have no way of knowing what arguments or admissions were made before the trial court at the hearing on the motion to enforce.” Defendant’s attorneys, however, do know what took place, both on December 7 and during the settlement process. The same rule should apply here which applies to inquiries regarding prior inconsistent statements: a good-faith basis is required; innuendos or insinuations are improper. People v. Fiorita, 339 Ill. 78, 88, 170 N.E. 690, 694 (1930); Boyce v. Risch, 276 Ill. App. 3d 274, 278, 657 N.E.2d 1145, 1148 (1995).
A similar issue was addressed in McDuffee, where the question was when a particular judge was assigned to the case, beginning the running of the 10-day period for automatic substitution of judge. We faulted appellant for not providing a transcript of proceedings or bystander’s report of the hearing on the motion for substitution of judge. McDuffee, 299 Ill. App. 3d at 286, 701 N.E.2d at 535. The supreme court reversed. “There is no assignment order or rule of practice governing assignments contained in the appellate record. In the absence of an official assignment order, we must assume that there was none.” People v. McDuffee, 187 Ill. 2d 481, 490 (1999). The same rule applies here. There is no indication in this record that a settlement was made in open court. In the absence of any such indication, we must assume no settlement was made in open court.
The record indicates that plaintiff was not in court, either on November 10 or on December 7. The presumption that an attorney does not have authority to settle a client’s case is designed to protect the client. We should not allow that presumption to be diluted by an overly expansive application of the rule that the appellant has the duty to prepare the record or by a defendant’s insinuation that something unsupported by the record may have occurred.
I would reverse the judgment of the trial court and remand for further proceedings. In the interests of judicial economy, I would also address plaintiffs argument that the trial court abused its discretion in granting defendant’s motion to bar plaintiffs opinion testimony.