NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
2023 IL App (3d) 230019-U
Order filed September 20, 2023 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
R.P. ACQUISITION CORPORATION, ) Appeal from the Circuit Court ) of the 21st Judicial Circuit, Plaintiff-Appellant, ) Iroquois County, Illinois, ) v. ) Appeal No. 3-23-0019 ) Circuit No. 21-LM-22 ) WILLIAM JODA CRABTREE, ) Honorable ) Kara M. Bartucci, Defendant-Appellee. ) Judge, Presiding. ____________________________________________________________________________
JUSTICE DAVENPORT delivered the judgment of the court. Justices McDade and Albrecht concurred in the judgment. ____________________________________________________________________________
ORDER
¶1 Held: Plaintiff failed to provide the reviewing court with an adequate record to review its contention that the trial court’s decision, after a bench trial, was against the manifest weight of the evidence. Affirmed.
¶2 Plaintiff, R.P. Acquisition Corporation, filed a replevin complaint (735 ILCS 5/19-101
et seq. (West 2020)) against defendant, William Joda Crabtree, seeking possession of certain
personal property located in a warehouse owned by defendant (the East Watseka warehouse) and
damages for defendant’s detention of that property. After a bench trial, the trial court entered
judgment in favor of defendant on all but one item identified in the complaint, a “large compactor.”
The court, however, rejected plaintiff’s request for money damages for defendant’s detention of
the compactor. ¶3 Plaintiff appeals, arguing the trial court’s judgment was against the manifest weight of the
evidence. Because the record provides no basis on which we can make such a finding, we affirm. ¶4 I. BACKGROUND ¶5 Before August 2020, Pink Dogwood I, LLC, owned the warehouse at issue (the East
Watseka warehouse). Pink Dogwood’s affiliate, Tea Olive I, LLC, operated a retail farm and home
supply business, with 25 retail locations and 2 warehouses, including the East Watseka warehouse.
On August 7, 2020, Pink Dogwood sold the East Watseka warehouse and “all fixtures affixed
thereto” to defendant. ¶6 Defendant simultaneously leased the warehouse to Tea Olive for a one-year term, so Tea
Olive could continue to use the East Watseka warehouse. In January 2021, however, Tea Olive
filed Chapter 11 bankruptcy. ¶7 In March 2021, plaintiff purchased many of Tea Olive’s assets. The purchase,
memorialized in an asset purchase agreement, was approved by the bankruptcy court on March 15
without objection from defendant. Under the agreement, plaintiff essentially acquired all of Tea
Olive’s assets that were necessary to continue the operations but none of its financial assets. The
asset purchase agreement made clear that plaintiff was acquiring all such property located in the
East Watseka warehouse that was owned by Tea Olive. ¶8 In May 2021, plaintiff filed this replevin action against defendant, seeking possession of
certain property it acquired from Tea Olive that defendant had allegedly wrongfully detained in
the East Watseka warehouse. Plaintiff identified each item it alleged defendant had wrongfully
detained. It also sought damages for defendant’s wrongful detention of the items. See id. § 19-125. ¶9 The matter proceeded to a bench trial in September 2022. No court reporter was present to
transcribe the evidence presented, and therefore, no verbatim transcript of the trial evidence is
included in the record on appeal. Instead, the record contains an agreed statement of facts under
Illinois Supreme Court Rule 323(d) (eff. July 1, 2017), which sets forth general details about the
conduct of the trial. ¶ 10 According to the agreed statement of facts, the trial court heard testimony over two days.
In its case-in-chief, plaintiff called Jason Plummer and Kenneth Frey. In his case, defendant called
Frey, Tommy Taylor, and himself. In rebuttal, plaintiff called Plummer, Frey, and Kelli Butler.
The agreed statement of facts contains general accounts of each witnesses’ testimony. It states who
each witness was, the general subject matter of their testimony, and the exhibits that were admitted
during each witnesses’ testimony. However, it does not contain any specific detail of the witnesses’
testimony and does not appear to set forth all of the evidence presented to the trial court. We
include one of those accounts, which is indicative of the remainder of them, here:
“Plaintiff called Jason Plummer ***, Plaintiff’s Chief Executive Officer. Plummer
testified regarding Plaintiff’s purchase of [Tea Olive’s] assets. Plummer described the
negotiations and details of the sale of [Tea Olive’s] assets to Plaintiff. Plaintiff’s Exhibit A
was admitted. Exhibit A is the Asset Purchase Agreement between Plaintiff and [Tea
Olive]. Plaintiff’s Exhibit B was admitted. Exhibit B is the [bankruptcy court’s order
approving the sale of Tea Olive’s assets to plaintiff]. Plaintiff’s Exhibit E was admitted.
Exhibit E is a Clarification Agreement. The Clarification Agreement is a lease between
Plaintiff and Crown Credit Company showing the lease of certain assets located inside [the
East Watseka warehouse] by plaintiff from Crown Credit Company. Plummer discussed
his communications with Defendant regarding the Warehouse and the assets inside the
Warehouse. Plummer also testified regarding his experience with pallet racking installation
and removal.
***
Plaintiff called Plummer in rebuttal. Plummer testified regarding the same subjects
as his prior testimony.”
The agreed statement of facts also states that, after hearing the testimony, receiving several
exhibits, and hearing argument, the trial court took the matter under advisement. ¶ 11 In December 2022, the trial court announced its ruling in open court and provided a detailed
analysis. A transcript of the court’s oral ruling was prepared and was attached to the parties’ agreed
statement of facts. In the end, the court found in defendant’s favor on all but one item identified in
plaintiff’s complaint, a “large compactor.” The thrust of the court’s ruling was that plaintiff had
the burden to prove its ownership of the property identified in the complaint, not just mere better
title to it, and plaintiff had not proved it acquired ownership of the property via transfer from Tea
Olive. Essentially, plaintiff had not proved Tea Olive owned the property at the time plaintiff
purchased Tea Olive’s assets. With regard to the compactor, the trial court ordered that plaintiff
have possession, finding plaintiff proved its right to possession based on Frey’s testimony that he
purchased it for Tea Olive while he worked at Tea Olive. The court, however, denied plaintiff
damages based on a lack of evidence to support an award. ¶ 12 In January 2023, the court entered a written order memorializing its judgment, and this
appeal followed. ¶ 13 II. ANALYSIS *5 ¶ 14 On appeal, plaintiff contends the trial court’s judgment was against the manifest weight of
the evidence. Defendant responds plaintiff has not provided a record that is sufficient to review
this contention and we should therefore affirm the trial court’s judgment. We agree with defendant. ¶ 15 A. Standard of Review ¶ 16 We review a trial court’s decision after a bench trial against the manifest weight of the
evidence. Battaglia v. 736 N. Clark Corp., 2015 IL App (1st) 142437, ¶ 23. Under this standard,
we review all of the evidence presented and may reverse only when “an opposite conclusion is
clearly apparent or the trial court’s finding is palpably erroneous and wholly unwarranted, is
clearly the result of passion or prejudice, or appears to be arbitrary and unsubstantiated by the
evidence.” (Internal quotation marks and alterations omitted.) Bernstein and Grazian, P.C. v.
Grazian and Volpe, P.C., 402 Ill. App. 3d 961, 976 (2010). It is axiomatic that our review is limited
to the evidence and testimony actually admitted during trial. See In re L.L.S., 218 Ill. App. 3d 444,
465 (1991); In re H.C., 305 Ill. App. 3d 869, 878 (1999) (Steigmann, J., dissenting) (“Perhaps the
most fundamental rule of appellate review is that an appellate court reviews trial court judgments
based only upon the evidence presented at the trial level.”). ¶ 17 “Replevin is strictly a statutory proceeding.” Gunn v. Sobucki, 216 Ill. 2d 602, 613 (2005);
see 735 ILCS 5/19-101 et seq. (West 2020). The plaintiff has the burden of proof (id. § 19-107),
and “[t]o prevail, a plaintiff must recover on the strength of his or her own title or right to
immediate possession.” Gunn, 216 Ill. 2d at 613. A plaintiff who has no title or right to possession
“cannot maintain replevin even against a person who has no title to the property and is wrongfully
in possession of it.” Id. ¶ 18 B. The Record is Insufficient to Review the Trial Court’s Decision *6 ¶ 19 “It is a basic principle of appellate practice that a party who prosecutes an appeal has the
duty of presenting to the court of review everything necessary to decide the issues on appeal.”
Moran v. Erickson, 297 Ill. App. 3d 342, 359 (1998); see Foutch v. O’Bryant, 99 Ill. 2d 389, 391
(1984) (appellant has the burden to provide the reviewing court with a sufficient record to support
the claim of error). Thus, when seeking review of the trial court’s decision after trial, the appellant
has the burden to provide this court with all of the evidence admitted at trial. See W.E. Mundy
Landscaping & Garden Center, Inc. v. Hish, 187 Ill. App. 3d 164, 166 (1989). As we wrote in
Hish,
“Where the determination on appeal of whether a particular decision of the trial court
constituted error depends on an examination of the evidence, and the record does not show
or purport to show all pertinent evidence on which the decision is based, the reviewing
court will presume that the evidence omitted supports the decision of the trial court.” Hish,
187 Ill. App. 3d at 166; see Foutch, 99 Ill. 2d at 392 (any doubts arising from
incompleteness of the record are resolved against the appellant).
When the record does not contain all the evidence received by the trial court, we are unable to
perform our function in a manifest-weight review: to review all the evidence and determine
whether the opposite conclusion was clearly apparent. See Bernstein, 402 Ill. App. 3d at 976. ¶ 20 Here, the agreed statement of facts does not contain or purport to contain all the evidence
considered by the trial court. While it sets forth some general details concerning the conduct of the
trial and the general topics on which each witness testified, it contains none of the specific
testimony heard by the trial court. We do not have to speculate to conclude the agreed statement
of facts does not contain all of the evidence presented at trial. The court’s detailed oral ruling
confirms the trial court heard more evidence than was included in the agreed statement of facts. *7 ¶ 21 We acknowledge the record contains all the exhibits identified as admitted in the agreed
statement of facts. Plaintiff maintains the exhibits—specifically, the asset purchase agreement and
the bankruptcy court’s order approving same—sufficiently proved that it owned the property
identified in its complaint. Our review of the exhibits does not lead us to the conclusion that the
trial court’s judgment was against the manifest weight of the evidence. First, those exhibits prove
nothing more than plaintiff acquired all assets located in the warehouse that were owned by Tea
Olive when the parties executed the asset purchase agreement. None of the trial exhibits establishes
that Tea Olive owned the specific items identified in the complaint at the time the bankruptcy court
approved the sale to plaintiff. Further, the record does not establish such evidence was ever
presented to the trial court. Moreover, even if the exhibits were sufficient to prove plaintiff’s
complaint, we do not know what other evidence the trial court heard in relation to those exhibits.
We are therefore unable to determine whether the trial court’s judgment was against the manifest
weight of the evidence. ¶ 22 C. Plaintiff’s Brief ¶ 23 In his brief, defendant asserts that portions of plaintiff’s brief violate Rule 341(h).
Specifically, defendant notes that plaintiff’s brief includes references to specific testimony that is
nowhere mentioned in the agreed statement of facts, while relying on the agreed statement of facts.
See Ill. S. Ct. R. 341(h)(6), (7) (eff. Oct. 1, 2020) (governing the form and content statements of
facts and argument in appellate brief and requiring record support for any statement of fact).
Defendant asks that we either strike the violative portions of plaintiff’s brief or disregard the
improper material. We agree with defendant that plaintiff’s brief violates Rule 341(h). ¶ 24 For example, in its brief, plaintiff wrote the following and cited the agreed statement of
facts:
“At trial, Jason Plummer testified that he negotiated with Tea Olive, the Bankruptcy
Court, and Tea Olive’s creditors to purchase [Tea Olive’s assets]. Plummer testified that
the Asset Purchase Agreement was presented to Tea Olive’s creditors, including
Defendant, and that no objections were made by Defendant. [Plaintiff] took possession of
[Tea Olive’s assets] with no difficulty except for [the assets] in Defendant’s Warehouse.
Plummer testified that he took every effort to work with Defendant to resolve their
differences to no avail. [Plaintiff] is asking the court to allow [plaintiff] to take possession
of the Property inside the Warehouse and to be compensated for the losses suffered because
of Defendant’s detainment of the Property.” (Record citations omitted.)
The agreed statement of facts’ account of Plummer’s testimony, supra ¶ 10, contains no indication
that Plummer, in fact, testified to those facts. Moreover, we are unable to find anything in the
record to support plaintiff’s assertion that this specific testimony was presented at trial. ¶ 25 The above example is not isolated. We have reviewed plaintiff’s brief and it is replete with
other instances in which plaintiff made assertions of fact that are not supported by the pages of the
record it cites and find no record support otherwise. This plainly violates Rule 341(h)(6) and (h)(7),
as well as the general principle that parties may not rely on facts that do not appear of record.
Keener v. City of Herrin, 235 Ill. 2d 338, 346 (2009). ¶ 26 We decline to strike plaintiff’s entire statement of facts and have instead simply
disregarded the inappropriate statements in plaintiff’s brief. See id. That does not mean plaintiff’s
violation was not egregious, and our decision in this regard should not be read as sanctioning
plaintiff’s after-the-fact, unilateral attempt to supplement the parties’ agreed statement of facts.
We trust plaintiff’s counsel was not deliberately attempting to mislead this court and that counsel
will not engage in similar conduct in any future appeals. *9 ¶ 27 D. Illinois Supreme Court Rule 323 ¶ 28 The absence of a court reporter from the trial in this case was a preventable but ultimately
fatal misstep. However, plaintiff was not without recourse if it wished to challenge the trial court’s
decision as being against the manifest weight of the evidence. At oral argument, we asked
plaintiff’s counsel why she did not attempt to include an account of each witness’s specific
testimony in the agreed statement of facts. Her response was that she did not think she could get
defendant to agree to include specific testimony in the agreed statement of facts. Even if counsel’s
belief was true—and there is no indication she even attempted to include the specific testimony in
the agreed statement of facts—that does not mean plaintiff was prevented from including specific
testimony in a substitute for a verbatim transcript. Plaintiff could have proceeded under Illinois
Supreme Court Rule 323(c), which permits the appellant to prepare a bystander’s report of the
evidence presented “from the best available sources, including recollection,” and then seek
certification from the trial court. Ill. S. Ct. R. 323(c) (eff. July 1, 2017). It is inexplicable, then,
why plaintiff chose to omit the specific testimony from the agreed statement of facts and include
it in its brief to this court. ¶ 29 In any event, plaintiff failed to provide this court with an adequate record with which we
can assess the trial court’s decision. We, therefore, affirm the judgment. ¶ 30 III. CONCLUSION ¶ 31 For the reasons stated, we affirm the judgment of the circuit court of Iroquois County. ¶ 32 Affirmed.