dissenting:
The majority is critical of the proposed supplement to the record, complaining that the McCartys simply “deposited” the documents with the clerk of our court and left it up to the clerk to make sense of them. 362 111. App. 3d at 311.1 am puzzled by that characterization, as the documents seem clear to me. The materials consist of two bound volumes, with pages consecutively numbered from la through 1020a. Volume I contains the Weatherford defendants’ motion for summary judgment (pages 3a to 48a) and supporting memorandum (pages 49a to 77a). It also contains the Raynor defendants’ motion for summary judgment (pages 95a to 98a) and supporting memorandum (pages 99a to 124a). Those motions and memoranda explain the exhibits referred to, such as the complaint and answer, contract documents, and depositions. The McCarty deposition (pages 139a to 361a) is included, as is the Grites deposition (pages 362a to 496a). Volume II contains only three documents, the Weatherford deposition (pages 497a to 691a), the Lawrence deposition (pages 692a to 844a), and the Hart deposition (pages 845a to 1021a). The documents I have mentioned total 980 pages, 878 of which are depositions. The majority complains that the proposed supplement “consisted of a box of over a thousand papers.” 362 Ill. App. 3d 311. If we want to see 878 pages of depositions, we must expect that 878 pages will be handed to us.
I do not understand why we do not accept these documents and decide this case on the merits. Defendants were furnished copies and, during oral argument, agreed the contents are accurate. Defendants agree that with the addition of these documents the record is complete. Chicago Title & Trust Co. v. Brooklyn Bagel Boys, Inc., 222 Ill. App. 3d 413, 417, 584 N.E.2d 142, 144 (1991) (parties stipulated (during oral argument) that attachment to brief would be included in record). The attorney for the Raynor defendants did complain that two pages were missing from the McCarty deposition. He is correct, pages 142 and 143 seem to be missing. The complete McCarty deposition, however, was filed as a supplement to the record by the Weatherford defendants. Even if pages are missing, the solution is to find them, not throw out the appeal.
The majority labels the materials filed by the McCartys as an “appendix” and cites the rule that parties cannot use briefs and appendices to supplement the record. The rule is actually that attachments to briefs not otherwise before the reviewing court cannot be used to supplement the record. Jones v. Police Board, 297 Ill. App. 3d 922, 930, 697 N.E.2d 876, 881 (1998) (transcript of proceedings from a different case). A transcript of proceedings from another case, not considered by the trial court, cannot be added to the record on appeal. Materials which were before the trial court, however, and which could be added to the record under Rule 329, can be used to supplement the record even though they happen to be found in an “appendix.” Chicago Title, 222 Ill. App. 3d at 417, 584 N.E.2d at 144. The materials here, such as the depositions, are “otherwise before the reviewing court.” They were considered by the trial court. The majority’s complaint is that we need the depositions and do not have them, not that they are not legitimately before us.
The majority says that although the materials in the two bound volumes submitted by the McCartys are essential to the decision of this case, we are unable to consider them because they are not a part of the record. We should not pretend we are helpless. Omissions from the record may be corrected “by the reviewing court or a judge thereof.” 134 Ill. 2d R. 329; Robles v. Chicago Transit Authority, 235 Ill. App. 3d 121, 126-27, 601 N.E.2d 869, 872-73 (1992) (motion to supplement allowed after oral argument). We should enter an order allowing the two bound volumes to supplement the record. Omissions from the record may also be corrected by stipulation of the parties. 134 Ill. 2d R. 329. We have that stipulation here. The parties agree the materials in the two bound volumes are accurate and were considered by the trial court. It is only necessary to return the matter to the trial court if there is a controversy as to whether the record accurately discloses what occurred in the trial court. 134 Ill. 2d R. 329; Robles, 235 Ill. App. 3d at 126-27, 601 N.E.2d at 872-73 (motion to supplement allowed even though record not certified). There is no controversy here.
The Weatherford defendants submitted materials similar to those submitted by the McCartys, and the clerk of our court entered a routine order allowing them to be filed as a supplement to the record. Why are the Weatherford materials a proper supplement to the record, while the McCarty materials are an improper “appendix” which we refuse to consider? The Weatherford motion to supplement pointed out that the failure here was the failure of the clerk of the trial court. The clerk had these materials (somewhere), the clerk was required to file them as a part of the record, but the clerk failed to do so.
The majority’s only objection to the proposed supplement is that the McCartys did not file a proper motion for leave to supplement the record under Rule 329. 362 Ill. App. 3d at 312. Rule 329 does not say anything about a formal motion for leave to supplement, only that the record may be corrected by the parties, the trial court, or the reviewing court. 134 Ill. 2d R. 329. If the McCartys needed to file a formal motion for leave to supplement the record, why did we not tell them that, instead of springing the fact on them (when we filed our opinion) that we would not consider the materials? “LI]t is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before.” Johnson v. United States, 163 F. 30, 32 (1st Cir. 1908) (Holmes, J.). We have certainly told other litigants in the past that a particular filing was insufficient, that something more needed to be done.
The majority lays down three rules in its opinion: (1) we must have all the evidentiary material that the trial court had before it, (2) appellees have no obligation in preparing the record, and (3) if anything is missing from the record, appellant must lose. I respectfully disagree.
A court is not always required to affirm the decision of the trial court because the record is incomplete. See Midstate Siding & Window Co. v. Rogers, 204 Ill. 2d 314, 319, 789 N.E.2d 1248, 1251 (2003); Johnson v. Matviuw, 176 Ill. App. 3d 907, 912, 531 N.E.2d 970, 973 (1988) (“We deny defendant’s motion to strike plaintiffs brief, preferring instead to disregard any material in the briefs and/or appendix that is not supported by the record so that the issues can be decided on their merits”). It is not necessary that the record include everything that the trial court had before it. Robles, 235 Ill. App. 3d at 127, 601 N.E.2d at 872 (record sufficiently complete to allow us to consider the merits of the arguments raised on appeal). To some extent the parties are allowed to choose what should be contained in the record. The appellant initially selects which portions of the proceedings she wants transcribed. The appellee may then designate additional portions that the appellee deems necessary. 166 Ill. 2d R. 323(a). The parties are encouraged not to include unnecessary and immaterial matter, and costs may be assessed against a party who includes such matter. 166 Ill. 2d R. 323(a). True, the trial court rlerk is required to include every document filed and any documentary exhibits in the record on appeal. 155 Ill. 2d R. 321. If the clerk does not perform his duty, however, the remedy is to correct the record under Rule 329, not to dismiss the appeal.
Webster did not hold that if anything is missing from the record, appellant must lose. Webster held that a party who asserted that his attorney lacked authority to settle a case had the obligation to present some evidence of that fact in the trial court. “[T]his court will not look beyond the record on appeal to find that plaintiffs attorney lacked his authority to settle. There must be evidence in the record that his attorney, Harris, lacked authority.” Webster, 195 Ill. 2d at 436, 749 N.E.2d at 964. The present case, however, does not involve a lack of proof in the trial court. It is clear that the trial court had the depositions and exhibits in question before it. The question is whether we have those depositions and exhibits before us. We clearly do.
We should require compliance with supreme court rules so that cases may be decided fairly and on their merits. The committee comments describe Rule 329 as a “sweeping provision,” with “liberal terms,” under which it is possible to employ “the procedure that will most appropriately solve the particular problem.” 134 Ill. 2d R. 329, Committee Comments, at 289. The majority, however, is not interested in compliance, or solving the problem. The majority is only interested in punishing appellant.