County of Peoria v. Couture

2022 IL App (3d) 210091, 193 N.E.3d 895, 456 Ill. Dec. 655

• Court: Appellate Court of Illinois
• Decided: January 21, 2022
• Docket: 3-21-0091
• Status: Published

Opinion

2022 IL App (3d) 210091 FILED January 21, 2022 NO. 3-21-0091 Carla Bender 4th District Appellate IN THE APPELLATE COURT Court, IL

OF ILLINOIS

THIRD DISTRICT

THE COUNTY OF PEORIA, ILLINOIS, and THE ) Appeal from the CITY OF PEORIA, ILLINOIS, ) Circuit Court of Plaintiffs-Appellees, ) Peoria County v. ) No. 20OV428 JOSEPH E. COUTURE, ) Defendant-Appellant. ) Honorable ) Kevin W. Lyons, ) Judge Presiding.

JUSTICE CAVANAGH delivered the judgment of the court, with opinion. Presiding Justice Knecht and Justice Steigmann concurred in the judgment and opinion.

OPINION

¶1 Peoria County filed an ordinance-violation complaint against the defendant, Joseph

E. Couture. The City of Peoria joined the action as a second plaintiff. In the ensuing bench trial,

the circuit court of Peoria County found that Couture had violated three provisions of a Peoria

ordinance forbidding the possession, within city limits, of a “nuisance animal.” Peoria City Code

§ 4-22(a)(1), (2), (6) (amended Jan. 28, 2020). The court imposed a fine on Couture. He appeals,

and in his appeal he makes four arguments.

¶2 First, Couture argues that the circuit court erred by denying his motion to dismiss

the ordinance-violation complaint, with prejudice, pursuant to section 2-619(a)(9) of the Code of

Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2020)) and by granting the county’s motion to

amend the complaint. We conclude that the denial of the section 2-619 motion merged into the judgment, making the denial unreviewable. Also, because it is the policy of Illinois law to freely

and liberally allow amendments to pleadings so that cases will be decided on their merits instead

of on pleading technicalities, we find no abuse of discretion in the court’s decision to allow the

amendment of the complaint.

¶3 Second, Couture contends that the circuit court erred by finding that he had violated

the three subsections of the municipal code (Peoria City Code § 4-22(a)(1), (2), (6) (amended Jan.

28, 2020)). We partly agree with this contention. The finding against Couture on section 4-22(a)(6)

is against the manifest weight of the evidence. We are unable to say the same, however, about the

findings on section 4-22(a)(1) and (2), which we accordingly affirm.

¶4 Third, Couture maintains that the circuit court erred by granting a motion in limine

by the plaintiffs. We hold that he has forfeited this issue by failing to follow up with an offer of

proof in the bench trial.

¶5 Fourth, Couture argues that, if our decision requires further proceedings on remand,

the matter should be assigned to a different judge. We see no need, however, for a remand.

¶6 Therefore, we reverse the finding against Couture on section 4-22(a)(6) of the

municipal code (id. § 4-22(a)(6)), but we otherwise affirm the judgment.

¶7 I. BACKGROUND

¶8 Couture owned Unit 810 in the condominium building at 401 Southwest Water

Street in Peoria, Illinois. Michael J. Salmon owned Unit 806. On the evening of May 6, 2020, in

the eighth-floor elevator lobby of the building, Couture’s dog bit Salmon’s dog, killing it.

¶9 On May 7, 2020, a short-form ordinance-violation complaint, or ticket, was filed in

the circuit court as Peoria County case No. 20-OV-227. According to the caption of the ticket,

Peoria County was the plaintiff. (It was a form in which “County of Peoria” was preprinted as the

-2- plaintiff.) The ticket charged that on May 7, 2020, Couture violated section 5-9(a)(6) of the Peoria

County Code (Peoria County Code § 5-9(a)(6) (amended Oct. 10, 2019)) by possessing an animal

that created a nuisance.

¶ 10 On August 28, 2020, Couture moved for a summary judgment in his favor (see 735

ILCS 5/2-1005(b) (West 2020)). The motion gave four reasons for this requested relief. First, since

Couture had an undivided percentage ownership interest in the eighth-floor elevator lobby, the

county could not prove that the dog bite was inflicted, in the language of section 5-9(a)(6), “off

the premises of the [biting dog’s] owner.” Second, Salmon was the signer of the ticket, even though

he was neither “an attorney representing the plaintiff” nor “a peace officer or a code enforcement

officer authorized by the plaintiff to sign the charging document.” See Ill. S. Ct. R. 572(a) (eff.

Dec. 7, 2011). Third, as proven by an affidavit signed by Couture, the alleged date of the offense

was inaccurate (it should have been May 6, 2020, instead of May 7, 2020). Fourth, the ticket

accused Couture of “city violations” while citing the Peoria County Code instead of the Peoria

City Code.

¶ 11 On September 11, 2020, the circuit court declined to rule on the merits of Couture’s

motion for summary judgment, instead dismissing the ticket for noncompliance with the signature

requirement of Rule 572(a).

¶ 12 On September 15, 2020, an officer of Peoria County Animal Protection Services

(Animal Protection), Keith Mallow, signed a new ordinance-violation complaint, which was

docketed as Peoria County case No. 20-OV-428. This complaint alleged that on May 7, 2020, at

401 Southwest Water Street in Peoria, Couture violated section 5-9(a)(1), (2), and (6) of the Peoria

County Code (Peoria County Code § 5-9(a)(1), (2), (6) (amended Oct. 10, 2019)) by permitting

his dog to become a nuisance.

-3- ¶ 13 On November 10, 2020, Couture filed a document titled “Defendant’s Motion to

Dismiss and for Rule 137 Sanctions.” In this motion, he requested two forms of relief. First,

pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West

2020)), he argued that the case should be dismissed with prejudice because, under section 1-3 of

the county code (Peoria County Code § 1-3 (adopted 1969)), the county code “appl[ied] only to

all acts performed within the unincorporated areas of the county” (to quote from section 1-3). The

motion argued, further, that the dismissal should be with prejudice “because the inapplicability of

the [county code] mean[t] that there [were] no facts the County [could] prove that would entitle

them to judgment.” (Emphasis in original.)

¶ 14 Second, pursuant to Illinois Supreme Court Rule 137 (eff. Jan. 1, 2018), the motion

sought sanctions against the county because (1) in this second version of the complaint, the county

got the date of the offense wrong again; (2) the complaint cited the county code, which, it was

clear from the face of the complaint, was inapplicable; and (3) in a vexatious effort to collect three

times the lawful amount from Couture, the county asserted three violations of the county code.

¶ 15 On December 3, 2020, the county filed a response to Couture’s motion for dismissal

and for sanctions. The county pointed out that, in 2018, Peoria County and the City of Peoria

entered into an intergovernmental cooperation agreement, as the constitution (Ill. Const. 1970, art.

VII) and the Intergovernmental Cooperation Act (5 ILCS 220/1 et seq. (West 2018)) allowed them

to do. In the agreement, which was attached to the county’s response as exhibit A, the parties

recited that the county operated Animal Protection and that the city was “in need of an animal

control program.” The county agreed to assume the duty of “respond[ing] to calls and issu[ing]

ordinance violation tickets to owners for animals found to be in violation of the CITY’s animal

control ordinance.” Not only would the county “retain all fines,” but the city would pay the county

-4- certain amounts to cover the cost of providing animal control services in the city. In addition, the

city agreed as follows:

“B. The CITY shall designate the COUNTY, [Animal Protection], and the

City of Peoria as the CITY’s authorized delegates for purpose of enforcing the

CITY’s Animal Control Ordinance.

C. The CITY shall adopt the COUNTY’s or the City of Peoria’s animal

control ordinance as the CITY’s ordinance for purposes of enforcement.

D. The CITY acknowledges that [Animal Protection’s] Animal Control

Officers shall have full authority to enforce the City’s Animal Control Ordinance

within the City limits.”

¶ 16 The county further pointed out, in its response to Couture’s motion for dismissal,

that “the County Code section dealing with animal nuisance read[ ] almost verbatim to the City

Code involving animal causing a nuisance.” The county code provisions read as follows:

“(a) No person owning, possessing or harboring any animal within the

county shall permit said animal to become a nuisance. An animal, other than a dog

trained for law enforcement in the performance of its duty, shall be considered a

nuisance if said animal:

(1) Substantially damages property other than the owner’s.

(2) Causes unsanitary, dangerous or unreasonably offensive

conditions. ***

***

-5- (6) Chases, molests, attacks, bites, or interferes with other domestic

animals while off the premises of the owner.” Peoria County Code

§ 5-9(a)(1), (2), (6) (amended Oct. 10, 2019).

By comparison, the corresponding provisions of the Peoria City Code read as follows:

“(a) No person shall own, possess, or harbor a nuisance animal within the

city. An animal, other than a dog trained for law enforcement in the performance

of its duty, shall be considered a nuisance if such animal:

(1) Damages real or personal property other than the owner’s.

conditions.

(6) Chases, molests, attacks, bites or interferes with other animals

while off the premises of the owner.” Peoria City Code § 4-22(a)(1), (2),

(6) (amended Jan. 28, 2020).

¶ 17 Thus, the county observed, “[b]oth the County and the City ordinances contain[ed]

the same language, just in two different Codes and different labeling numbers.” The county argued

that, “[b]ecause authority has been given to [Animal Protection] by the City to enforce City and

County codes in the City, [Couture’s] argument [in his motion for dismissal] must fail.”

¶ 18 As for Couture’s request for the imposition of sanctions, the county argued it ought

to be allowed to plead as many counts as the evidence warranted. The county explained that the

date of the offense was merely a trivial clerical error, which the county requested to correct by

amendment.

-6- ¶ 19 On December 17, 2020, Judge Lyons held a hearing on Couture’s motion for

dismissal under section 2-619(a)(9) and for Rule 137 sanctions. Defense counsel argued that,

although under the intergovernmental cooperation agreement Animal Protection could enforce the

city’s animal control ordinance within the city, it could not enforce the county’s animal control

ordinances within the city.

¶ 20 The circuit court asked defense counsel, “Don’t they kind of mirror each other?”

Defense counsel conceded that “[t]hey do,” but he insisted that even though “the language may be

the same,” the claim had to be brought under the city ordinance, in the name of the city, instead of

under the county ordinance, in the name of the county. “They’re just doing this wrong,” defense

counsel argued, “and really all they had to do was possibly bring a claim under the City Ordinance,

but they didn’t.”

¶ 21 “Well, what if I said for them to do that?” the circuit court asked. Defense counsel

answered:

“MR. AHMAD: Well, you would have to dismiss the Peoria County with

prejudice because Peoria County cannot bring the claim. It would have to be a City

of Peoria claim brought by these attorneys perhaps.

THE COURT: What if I said well, you know, if I were you, maybe you

should bring this under the title of the City or cross out the words on the top and

write in City or something and then they dismiss on their own this one and go on

the other one? Aren’t we rowing different boats, but trying to get to the same

place?”

Defense counsel believed that, if there were only one plaintiff to begin with, a different plaintiff

could not be substituted for that plaintiff. Instead, according to defense counsel, the current

-7- plaintiff’s case would have to be dismissed with prejudice, and a different plaintiff, the correct

one, would have to file a new action.

¶ 22 The circuit court disagreed that a dismissal with prejudice and the initiation of a

new case would be necessary. Also, because Couture was present when the incident happened and

presumably knew what day it was when the incident happened, the court did not see how he could

be prejudiced if the complaint said May 7, 2020, instead of May 6, 2020. Therefore, the court

orally denied Couture’s motion for dismissal.

¶ 23 The circuit court then asked, “What else do we need to do?” The assistant state’s

attorney replied:

“MR. COLEMAN: Just my request to amend the ticket, [Y]our Honor, from

the 7th to the 6th.

THE COURT: Okay. We’ll do that, and we’ll just do it by interlineation and

write it on there. ***

MR. COLEMAN: Your Honor, I do have a question. Should we amend the

code to the City Code? They have access with both of them instead of the County.

Is that—

THE COURT: Are they the—they’re the same words; aren’t they?

MR. COLEMAN: Yeah. They’re essentially the same words pretty much

verbatim so—

THE COURT: Why don’t we—why don’t you put both of them are on

there.

MR. COLEMAN: Okay.”

-8- ¶ 24 The ordinance-violation complaint, as amended, has four handwritten changes,

each change initialed by “RC” (presumably Reginald Coleman, the assistant state’s attorney who

was in attendance at this hearing). First, “Amended” is written above the preprinted title “Short

Form Complaint.” Second, in the caption, the phrase “& City of Peoria, IL,” is written below the

preprinted plaintiff, “County of Peoria.” Third, “5-7-20” is crossed out, and “5-6-20” is written

above it. Fourth, “City Violations” is written and underlined, and underneath, “4-22(a)1,”

“4-22(a)2,” and “4-22(a)6” are written.

¶ 25 On February 18, 2021, the day before the bench trial, defense counsel e-mailed the

assistant state’s attorney a list of the witnesses whom the defense expected to call. According to

the e-mail, Jennifer Sacco was “expected to testify regarding her evaluation of Mr. Couture’s dog.”

Sally Monroe and Sandy Velde were “expected to testify regarding the disposition and behavior

of Mr. Salmon’s dogs and Mr. Couture’s dog.” Marissa Howard was “expected to testify regarding

the disposition and behavior of Mr. Couture’s dog.”

¶ 26 That same day, the assistant state’s attorney responded with a motion in limine,

which sought to bar canine propensity evidence. The motion argued that “[t]he propensity of either

dog *** to be either aggressive or mild[-]mannered” was “not relevant to determine whether Mr.

Couture’s dog was a nuisance at the relevant time” and propensity was “not outlined as a yardstick

for any of the subsections.”

¶ 27 On February 19, 2021, after hearing arguments on the plaintiffs’ motion in limine,

the circuit court granted the motion. The court agreed that canine propensity evidence would be

irrelevant. The court remarked, “[W]ith regard to testimony that that attaches to propensity, or

what you’re calling ‘dog character,’ I do not find any support that allows for that when the citation

or the ordinance applied against the defendant is the one used.”

-9- ¶ 28 After the granting of the motion in limine, the bench trial began, with Judge Lyons

presiding. Salmon took the stand and testified in substance as follows. He owned two dogs. Around

10 or 10:30 p.m. on May 6, 2020, he exited his condominium unit to take his dogs out for a walk.

His dogs were on leashes. While holding the leashes in his left hand, he walked to the door

separating the condominium corridor from the elevator lobby. He opened the door toward him

with his right hand and took a step forward into the elevator lobby, a public area. At that moment,

Couture’s dog bit and killed one of his dogs, which bled onto the carpet a pool about the size of a

cantaloupe. The next day, on May 7, 2020, Salmon told the building manager, Rose (last name

unspecified), about the bloodstain on the carpet. Within a day or two, she had the bloodstained

area cleaned. The next day, however, the “shadow” of the bloodstain returned. Salmon contacted

Rose again, who this time had the carpet square replaced.

¶ 29 On cross-examination, defense counsel asked Salmon:

“Q. You indicated that the carpet square where the incident took place was

replaced?

A. Correct.

Q. Did you see it being replaced?

A. No.

Q. Could it have just been cleaned?

A. It was, and then the spot rose up and came back. And then I called Rose

and she said she would replace the carpet itself.

Q. But you don’t know if it was actually replaced?

A. I do personally because Rose is a very hard worker, and I trust when she

says she’s going to do something she does it.

- 10 - Q. But you didn’t actually see the—

A. Oh, no.

Q.—carpet being replaced?

A. I didn’t see it being cleaned. I try to stay away from that area as much as

I can. And when I—would walk around it or not even look down.

Q. So your assumption is the carpet was replaced, but you don’t know for

sure?

A. No. No, I do not know for sure. Correct.”

¶ 30 In the defense’s case, Couture took the stand and testified substantially as follows.

He owned Unit 810 in the condominium building. With that unit, he had acquired a percentage

ownership of all the common elements of the condominium portion of the building, including the

eighth-floor elevator lobby. The circuit court admitted Couture’s warranty deed into evidence.

Around 10:30 p.m. on May 6, 2020, Couture took his dog outside to urinate. He then brought his

dog back into the condominium building. He rode an elevator to the eighth floor. When the elevator

door opened, Couture went to the door that separated the elevator lobby from the condominium

corridor. Holding the leash firmly in his right hand, with no slack so that his dog was standing

right next to him, Couture swiped his key on the door. With his left hand, he pushed the door

halfway open. He saw that Salmon was sitting on the floor in the condominium corridor,

“manipulating the leash or harness of one of [his] dogs.” Salmon’s other dog had a leash on, too,

but Salmon was not holding that leash. Dragging its leash, Salmon’s second dog advanced on

Couture and his dog, barking. Couture swung his right arm behind him as far as he could, to hold

his dog back, and he tried to step on the leash of Salmon’s dog, to stop him. Couture was

- 11 - unsuccessful. Salmon’s dog got past Couture and behind him, and Couture’s dog inflicted a fatal

bite on Salmon’s dog.

¶ 31 After hearing the evidence and the arguments, the circuit court entered a finding

against Couture on section 4-22(a)(1), (2), and (6) of the city code (id.). The court entered a

judgment, however, only on the violation of section 4-22(a)(6) and assessed against Couture a fine

of $150 and court costs of $254.

¶ 32 This appeal followed.

¶ 33 II. ANALYSIS

¶ 34 A. The Denial of the Motion for Dismissal Pursuant to Section 2-619(a)(9)

¶ 35 Illinois Supreme Court Rule 571 (eff. Dec. 7, 2011) provides that, “[e]xcept as

specifically stated herein or in existing statutes, the Code of Civil Procedure [(735 ILCS 5/1-101

et seq. (West 2020))] shall apply in all ordinance prosecutions to which these rules apply.” No

statute or supreme court rule, as far as we know, specifically states that section 2-619 of the Code

of Civil Procedure (735 ILCS 5/2-619 (West 2020)) is inapplicable to ordinance prosecutions. We

conclude, then, that section 2-619 is applicable. See id.

¶ 36 Pursuant to section 2-619(a)(9) (id. § 2-619(a)(9)), Couture moved to dismiss the

ordinance-violation complaint, with prejudice, on the grounds that (1) the incident happened in

Peoria and (2) the Peoria County Code, by its own terms (see Peoria County Code § 1-3 (adopted

1969)) was inapplicable to incorporated areas of Peoria County. Thus, in his motion for dismissal,

Couture denied committing the offense of animal nuisance as defined by the section of the Peoria

County Code cited in the complaint (Peoria County Code § 5-9(a)(1), (2), (6) (amended Oct. 10,

2019)). He argued it was ascertainable, from the face of the complaint, that he did not violate those

subsections. The complaint alleged that the offense occurred at 401 Southwest Water Street in

- 12 - Peoria, Illinois. But section 1-3 of the Peoria County Code (Peoria County Code § 1-3 (adopted

1969)) read that, “[u]nless otherwise provided[,] this Code shall apply only to all acts performed

within the unincorporated areas of the county.” (Emphasis added.)

¶ 37 Even though Peoria was an incorporated area of the county, the circuit court denied

the motion for dismissal. On appeal, Couture maintains that the court thereby erred.

¶ 38 Arguably, the circuit court’s denial of the motion is defensible because, given the

reason for dismissal that Couture advanced, section 2-619(a)(9) was the wrong section of the Code

of Civil Procedure. A section 2-619 motion admits the legal sufficiency of the complaint while

raising defects or defenses outside the complaint, i.e., affirmative matters, that defeat the claim.

Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 579 (2006). Couture’s

contention, essentially, was that the ordinance-violation complaint was legally insufficient on its

face. As he argued, all one had to do was read the complaint to ascertain that it was legally

insufficient. True, one also would have to read section 1-3 of the Peoria County Code. Properly

speaking, however, section 1-3 was not affirmative matter within the meaning of section 2-

619(a)(9) any more than case law would have been affirmative matter. When, pursuant to section

2-615 (735 ILCS 5/2-615 (West 2020)), the court assesses the legal sufficiency of a complaint, the

court considers “matters of which the court can take judicial notice.” Mt. Zion State Bank & Trust

v. Consolidated Communications, Inc., 169 Ill. 2d 110, 115 (1995). Courts are required to take

judicial notice of municipal and county ordinances. 735 ILCS 5/8-1001 (West 2020). Arguably,

then, since Couture really was challenging the legal sufficiency of the complaint by reference to

an ordinance of which the court had to take judicial notice, his motion for dismissal should have

been pursuant to section 2-615 instead of section 2-619(a)(9).

- 13 - ¶ 39 We need not, and perhaps should not, definitively resolve this procedural question.

In any event, “[o]n an appeal, it is not proper to raise the denial of a section 2-619 motion to

dismiss, as the result of the denial merged with the final judgment from which the appeal was

taken.” In re Marriage of Sorokin, 2017 IL App (2d) 160885, ¶ 22; see also Ovnik v. Podolskey,

2017 IL App (1st) 162987, ¶ 20. In the bench trial, the circuit court found Couture to be guilty

only of violating the Peoria City Code, not of violating the Peoria County Code. (Couture points

out in his brief that “the County abandoned the County-Code-based counts at trial.”) Thus, the

judgment effectively found in Couture’s favor on the county code citations that, in his motion for

dismissal, he insisted were inapplicable to him. Having merged with the final judgment, the denial

of the section 2-619 motion is moot and unreviewable. See Sorokin, 2017 IL App (2d) 160885,

¶ 22; Ovnik, 2017 IL App (1st) 162987, ¶ 20; People ex rel. Johnson v. Doglio, 43 Ill. App. 3d

420, 421 (1976) (holding that “questions *** which have become moot or academic are not a

proper subject of review”).

¶ 40 B. Allowing Amendments to the Complaint

¶ 41 On December 17, 2020, the circuit court held a hearing on Couture’s motion for

dismissal pursuant to section 2-619(a)(9) (735 ILCS 5/2-619(a)(9) (West 2020)). At the hearing,

the court denied the motion for dismissal and allowed the assistant state’s attorney to amend the

complaint by interlineation so as to (1) change the alleged date of the offense from May 7, 2020,

to May 6, 2020; (2) add the City of Peoria to the caption as a plaintiff; and (3) add citations to the

Peoria City Code, specifically, section 4-22(a)(1), (2), and (6) (Peoria City Code § 4-22(a)(1), (2),

(6) (amended Jan. 28, 2020)). On appeal, Couture contends that the court abused its discretion by

allowing those amendments to the complaint. See Village of Wadsworth v. Kerton, 311 Ill. App.

3d 829, 842 (2000) (holding that “[w]hether to allow an amendment of a complaint is a matter

- 14 - within the sound discretion of the trial court” and that, “absent an abuse of that discretion, the

court’s determination will not be overturned on review”).

¶ 42 Quoting from People ex rel. Hartigan v. E&E Hauling, Inc., 153 Ill. 2d 473, 505

(1992), Couture argues that we should consider four factors when deciding whether the circuit

court abused its discretion by allowing the amendments: “(1) whether the proposed amendment

would cure the defects in the original pleading; (2) whether the amendment would prejudice or

surprise other parties; (3) whether the proposed amendment is timely; and (4) whether previous

opportunities to amend the pleading can be identified.” In E&E Hauling, however, the supreme

court reviewed the denial of permission to file a second amended complaint, whereas Couture

challenges the granting of permission to amend a complaint. See id. Likewise, in the case from

which E&E Hauling obtained the four factors, Loyola Academy v. S&S Roof Maintenance, Inc.,

146 Ill. 2d 263 (1992), the supreme court reviewed the denial of permission to amend a complaint

(id. at 265-66).

¶ 43 We point out this distinction between those cases and this one because the first

factor seems more relevant to reviewing the denial of a motion to amend a pleading than to

reviewing the granting of such a motion. If, despite the granting of the motion, the pleading

remained defective, the nonmovant’s discontent surely would be with persisting in litigation on a

legally insufficient pleading, not so much with the ineffectual motion to repair the pleading. In any

event, the amendments cured defects in the ordinance-violation complaint, substituting an

applicable body of law for an inapplicable body of law. Therefore, assuming its relevance to the

allowance of amendments, the first factor weighed in favor of allowing the amendments.

¶ 44 The remaining three factors are more obviously relevant to this case. They consider

whether, by the proposed amendment, the movant unfairly surprised the opposing party, leaving

- 15 - the opposing party insufficient preparation time to rebut the new matter raised in the amendment.

“Prejudice may be shown where delay before seeking an amendment leaves a party unprepared to

respond to a new theory at trial.” (Internal quotation marks omitted.) Hartzog v. Martinez, 372 Ill.

App. 3d 515, 525 (2007). The movant’s procrastination should not become the opposing party’s

emergency. But there was little procrastination in this case. The trial was two months away when

the circuit court allowed the assistant state’s attorney to amend the ordinance-violation complaint.

Couture did not have to frantically scramble for evidence to meet a last-minute amendment. See

Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 469 (1992) (holding that, even though the

plaintiff “had other opportunities *** to amend the pleadings,” the circuit court did not abuse its

discretion in permitting amendment, because the opponent “was not prejudiced”); Taylor v. City

of Beardstown, 142 Ill. App. 3d 584, 591 (1986) (holding that “a trial court should not deny leave

to amend solely on the basis of a delay in filing, unless accompanied by a showing of prejudice to

the opposing party which goes beyond mere inconvenience”).

¶ 45 Couture disagrees that “prejudice,” properly understood, is confined to whether he

was ambushed on the eve of trial. He complains that he was prejudiced in another sense: the city

code was, to him, a more threatening regime than the county code. Under the county code, he was

not forbidden to have a nuisance animal in the city, whereas under the city code—citations of

which were added to the complaint by amendment—he was forbidden to have a nuisance animal

in the city.

¶ 46 Couture’s understanding of “prejudice” cannot be right. By his logic, a legally

insufficient complaint could never be amended to make it legally sufficient, because a legally

sufficient complaint would subject the defendant to the threat of an onerous remedy to which the

defendant would not have been subjected under the unamended, legally insufficient complaint. In

- 16 - Illinois, however, the policy is to “remove barriers which prevent the resolution of a case on its

merits.” Scala/O’Brien Porsche Audi, Inc. v. Volkswagen of America, Inc., 87 Ill. App. 3d 757,

762 (1980). To that end, permission to amend pleadings should be freely and liberally given “so

that cases are decided on their merits” instead of “on procedural technicalities.” Droen v. Wechsler,

271 Ill. App. 3d 332, 336 (1995). Allowing the correction of pleading defects in the complaint

might be “bad” for the defendant in that a previously unstated cause of action is now stated against

the defendant. Unless there is a time crunch, however, that cannot reasonably be alleviated by a

continuance, this is not the kind of “prejudice” that the cases have in mind. But of course

defendants are prejudiced when they are sued. “Prejudice” to the defendant has to mean more than

being sued by the plaintiff on a legally cognizable theory.

¶ 47 In sum, then, we conclude that the four factors cited by Couture militated in favor

of allowing the amendments to the ordinance-violation complaint. We are unable to say that the

court abused its discretion by allowing the amendments, which enabled the complaint to state a

cause of action under the Peoria City Code. See Ill. S. Ct. R. 572(e) (eff. Dec. 7, 2011) (providing

that “[t]he charging document may be amended at any time, before or after judgment, to conform

the pleadings to the proofs on just and reasonable terms”); see also 735 ILCS 5/2-404 (West 2020)

(providing that “[a]ll persons may join in one action as plaintiffs, in whom any right to relief in

respect of or arising out of the same transaction or series of transactions is alleged to exist, whether

jointly, severally or in the alternative, whenever if those persons had brought separate actions any

common question of law or fact would arise”). If, because of the amendments, a cause of action

was stated, the court would have abused its discretion by denying permission to amend the

complaint. See Romito v. City of Chicago, 2019 IL App (1st) 181152, ¶ 28.

- 17 - ¶ 48 But a judge, Couture argues, should not give a party tips on how to state a cause of

action. “A trial judge may not be an advocate for a party *** but must take the case as the parties

have presented it.” In re Marriage of Drewitch, 263 Ill. App. 3d 1088, 1093 (1994). Couture

accuses Judge Lyons of giving the assistant state’s attorney legal advice on how the complaint

ought to be amended.

¶ 49 We express no opinion, one way or the other, whether Judge Lyons crossed the line

into advocacy. If the line was crossed, the remedy would not have been to prohibit the assistant

state’s attorney from following Judge Lyons’s advice. The remedy, instead, would have been the

disqualification of Judge Lyons (see Cammarata v. Jones, 763 So. 2d 552, 553 (Fla. Dist. Ct. App.

2000) (per curiam))—which Couture did not seek. There was a prescribed procedure for obtaining

the substitution of a judge for cause. See 735 ILCS 5/2-1001(a)(3) (West 2020); see also Ill. S. Ct.

R. 571 (eff. Dec. 7, 2011) (providing that, “[e]xcept as specifically stated herein or in existing

statutes, the Code of Civil Procedure shall apply in all ordinance prosecutions to which these rules

apply”). Couture never availed himself of that procedure. He never moved for the substitution of

Judge Lyons for cause. The issue of judicial bias, therefore, is forfeited. See Haudrich v.

Howmedica, Inc., 169 Ill. 2d 525, 536 (1996) (remarking that “[i]t is well settled that issues not

raised in the trial court are deemed waived,” that is, forfeited, and may not be raised for the first

time on appeal).

¶ 50 C. The Request for Sanctions Under Rule 137

¶ 51 Couture represents to us that “Judge Lyons never ruled on Couture’s request for

Rule 137 sanctions to be imposed against the County.” Consequently, Couture requests us to rule

on the motion by granting it. See Krautsack v. Anderson, 223 Ill. 2d 541, 562 (2006).

- 18 - ¶ 52 It is worth noting that, under Illinois Supreme Court Rule 303(a)(1) (eff. July 1,

2017), “[a] judgment or order is not final and appealable while a Rule 137 claim remains pending

unless the court enters a finding pursuant to Rule 304(a) [(Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016))].”

If, as Couture represents to us, his Rule 137 motion is still pending, we lack jurisdiction,

considering that the circuit court never made a Rule 304(a) finding. See id.; Ill. S. Ct. R. 579(d)

(eff. Dec. 7, 2011) (providing that “[e]ither party shall have the right to appeal any final judgment

entered in an ordinance violation case pursuant to Rule 303, ‘Appeals from Final Judgments of the

Circuit Court in Civil Cases’ ”).

¶ 53 It appears, though, that the circuit court denied Couture’s motion for sanctions. The

order of December 17, 2020, reads, “[I]t is hereby ORDERED: the Defendant’s Motion to Dismiss

with Prejudice and for Rule 137 Sanctions is denied in its entirety ***.” (Emphasis added.) As a

matter of English, that meant that every part of Couture’s motion was denied, including the part

where he requested sanctions under Rule 137. Because the circuit court ruled on the Rule 137

motion, there is no occasion for us to do so.

¶ 54 D. Violations of the Peoria City Code

¶ 55 1. Section 4-22(a)(6)

¶ 56 Because the circuit court fined Couture for violating section 4-22(a)(6) of the Peoria

City Code, we will begin with that section. It provided as follows:

“(a) No person shall own, possess, or harbor a nuisance animal within the

city. An animal, other than a dog trained for law enforcement in the performance

- 19 - (6) Chases, molests, attacks, bites or interferes with other animals

while off the premises of the owner.” Peoria City Code § 4-22(a)(6)

(amended Jan. 28, 2020).

¶ 57 Couture challenges the circuit court’s finding that he violated section 4-22(a)(6).

His challenge focuses on the phrase “while off the premises of the owner.” Id. It is undisputed that

on May 6, 2020, Couture’s dog bit Salmon’s dog in the eighth-floor elevator lobby of a

condominium building at 401 Southwest Water Street in Peoria. It also is undisputed that Couture

owned a condominium unit in that building and that, additionally, he owned an undivided

percentage of the eighth-floor elevator lobby. Was the elevator lobby, then, his “premises”? Or

were his “premises” only his condominium unit? Couture’s dog was a “nuisance animal” within

the meaning of section 4-22(a)(6) only if his dog bit Salmon’s dog “while off the premises of the

owner.” (Emphasis added.) Id.

¶ 58 We are asked to apply section 4-22(a)(6) to a set of undisputed facts, namely that

Couture’s dog bit Salmon’s dog in the eighth-floor elevator lobby, of which Couture owned an

undivided percentage. When we determine the legal effect of undisputed facts, our standard of

review is de novo. Thomas v. Diener, 351 Ill. App. 3d 645, 652 (2004). Likewise, we interpret

ordinances de novo. Daley v. American Drug Stores, Inc., 294 Ill. App. 3d 1024, 1026 (1998).

¶ 59 In the quoted phrase from the ordinance (“while off the premises of the owner”),

the only term that the Peoria City Code defines is “owner”:

“Owner means any person 17 years of age or older; or parent or guardian of

any person under the age of 17 years; or parent or guardian of an incapacitated

person having a right of property in an animal; or who acts as custodian, cares for,

keeps, feeds or knowingly permits an animal to remain on or about any premises

- 20 - occupied by such person; or a person who registers an inoculation certificate for an

animal with the county.” (Emphasis in original.) Peoria City Code § 4-1 (amended

Oct. 22, 2002).

So, “owner” means the owner of the animal—the animal that did the chasing, molesting, attacking,

or biting. It appears to be undisputed that Couture was the “owner” as defined in section 4-1: he

owned the dog that bit Salmon’s dog.

¶ 60 The remaining words in the phrase “while off the premises of the owner” (id.

§ 4-22(a)(6)) are undefined in the Peoria City Code. Couture quotes from Landis v. Marc Realty,

L.L.C., 235 Ill. 2d 1, 7 (2009): “Municipal ordinances are interpreted using the same general rules

of statutory interpretation.” He notes that, when a legislative body leaves a term undefined, courts

ascribe to that term its common meaning, which can be found in a dictionary. Id. at 8.

¶ 61 The word “of” in the phrase “while off the premises of the owner” (emphasis added)

(Peoria City Code § 4-22(a)(6) (amended Jan. 28, 2020)) is “a function word to indicate belonging

or a possessive relationship” (Merriam-Webster Online Dictionary, https://www.merriam-

webster.com/dictionary/of (last visited Jan. 10, 2022) [https://perma.cc/9E3E-Q5UP]). Thus, if in

Peoria a dog bites another dog, the biting dog is a “nuisance animal” within the meaning of section

4-22(a)(6) only if the bite was inflicted off the “premises” belonging to or possessed by the biting

dog’s owner. “[P]remises” are “a building and the area of land that it is on.” Merriam-Webster

Online Dictionary, https://www.merriam-webster.com/dictionary/premises (last visited Jan. 10,

2022) [https://perma.cc/QGE7-6WEG]. Or, as another dictionary puts it, “premises” are “the land

and buildings owned by someone, especially by a company or organization.” Cambridge

Dictionary Online, https://dictionary.cambridge.org/us/dictionary/english/premises (last visited

Jan. 10, 2022) [https://perma.cc/A9QE-CADD]. The eighth-floor elevator lobby was a common

- 21 - element in which Couture, as a condominium unit owner, had an undivided percentage of

ownership. See 765 ILCS 605/6 (West 2020) (providing that “[e]ach unit owner shall be entitled

to the percentage of ownership in the common elements appertaining to such unit as computed and

set forth in the declaration”). Therefore, the elevator lobby was Couture’s “premises” in the sense

that the elevator lobby belonged to him—just as the elevator lobby was the “premises” of other

condominium unit owners who had percentage ownership of it. (It is well known that premises can

have multiple owners.) As a matter of law, then, it was unproven that Couture’s dog bit Salmon’s

dog “while off the premises of” Couture. (Emphasis added.) See Peoria City Code § 4-22(a)(6)

(amended Jan. 28, 2020). Because that element was unproven, we reverse the finding of guilt on

section 4-22(a)(6).

¶ 62 2. Section 4-22(a)(1)

¶ 63 The circuit court also found that Couture had violated section 4-22(a)(1) (id.

§ 4-22(a)(1)). That section provided as follows:

“(a) No person shall own, possess, or harbor a nuisance animal within the

city. An animal, other than a dog trained for law enforcement in the performance

(1) Damages real or personal property other than the owner’s.” Id.

¶ 64 The city code defines “personal property” as “includ[ing] every species of property,

except real property, as defined by this section.” (Emphasis omitted.) Peoria City Code § 1-2

(adopted 1957). “Real property” in turn “includes lands, tenements[,] and hereditaments and shall

embrace all chattels real.” Id. Although a dog could pass by inheritance, the word “hereditaments”

means only real property (or else all personal property, being inheritable, would also be “real

property”; the two categories of property would collapse into one another). See Black’s Law

- 22 - Dictionary (11th ed. 2019) (defining “hereditament” as “1. Any property that can be inherited;

anything that passes by intestacy. 2. Real property; land”). Because Salmon’s dog was not “real

property” as defined by the city code, it was, by default, “personal property.” See also 3B C.J.S.

Animals § 5 (2021) (noting that “[d]ogs are considered to be personal property”). Couture had no

ownership interest in Salmon’s dog. Therefore, it seems simple and straightforward that, by killing

Salmon’s dog, Couture’s dog damaged personal property belonging to someone other than

Couture. See Peoria City Code § 4-22(a)(1) (amended Jan. 28, 2020).

¶ 65 In Couture’s view, though, the analysis is not so simple. To him, “[i]t is clear from

the context of section 4-22(a)(1) that ‘personal property’ was not intended to include animals,

domestic or otherwise.” He maintains that section 4-22(a)(1) and section 4-22(a)(6) are

in pari materia (a Latin phrase meaning “in the same matter”) and that they must be interpreted in

conjunction with one another. He reasons along these lines:

“Under subsection (6), an animal can be declared a nuisance for certain conduct

toward another animal, but only if that conduct took place off the premises of the

offending animal’s owner. [Citation.] It follows, then, that the City Council did not

intend to hold owners responsible if the offending conduct took place on their

premises.” (Emphasis in original.)

To honor that intent, Couture concludes, we must interpret “personal property,” in section 4-

22(a)(1), as meaning personal property except animals.

¶ 66 Construing “personal property” as including animals “would *** have absurd and

unjust consequences,” Couture continues. He invites us to consider a hypothetical in which A’s

dog is in A’s yard and B’s dog, passing by on the street, breaks free of its leash and runs toward A

and his dog. Frightened for itself and for its owner, A’s dog bites B’s dog, injuring it. Because the

- 23 - bite was inflicted on A’s premises, A would not have violated section 4-22(a)(6). But if “personal

property” in section 4-22(a)(1) included animals, A would have violated section 4-22(a)(1) and

would have to either get rid of his dog or move out of Peoria. Such an absurd, inconsistent result

would be avoided, Couture observes, if “personal property in section 4-22(a)(1) were interpreted

as excluding animals.” He quotes from Palm v. Holocker, 2018 IL 123152, ¶ 21: “We have an

obligation to construe statutes in a manner that will avoid absurd, unreasonable, or unjust results

that the legislature could not have intended.”

¶ 67 By urging us, in the name of avoiding “absurdity,” to read an exception into the

clear language of section 4-22(a)(1), Couture could open himself up to the criticism that his

textualism is opportunistic. After all, when it comes to section 4-22(a)(6), he exhorts us to stick

faithfully to the text, without reading into “premises” an exception for cotenancies or easements.

(He informs us that he both owns a percentage of the eighth-floor elevator lobby and has an

ingress/egress easement over it.) For purposes of section 4-22(a)(6), he maintains that, “[w]here

an enactment is clear and unambiguous, [courts] are not at liberty to depart from the plain language

and meaning of the statute by reading into it exceptions, limitations[,] or conditions that the

legislature [(or, in this case, the city council)] did not express.” DeSmet v. County of Rock Island,

219 Ill. 2d 497, 510 (2006). When it comes to section 4-22(a)(1), though, he wants us to read

“personal property” as “personal property except for animals,” and he insists that this exception is

necessary to avoid absurdity and injustice. He argues that the term “personal property” really does

not embrace, as section 1-2 puts it, “every species of property[ ] except real property” and that to

suppose the city council meant literally what it said in that definitional language would be

untenable. (Emphasis added.) Peoria City Code § 1-2 (adopted 1957).

¶ 68 This kind of argument calls to mind a warning by the supreme court:

- 24 - “ ‘[T]o maintain the separation of the legislative and judicial branches and avoid

compromising our fidelity to the text, we should be extremely reluctant to

second-guess the clear language of legislation ***. [Citation.] Whenever a court

disregards the clear language of legislation in the name of “avoiding absurdity,” it

runs the risk of implementing its own notions of optimal public policy and

effectively becoming a legislature. Interpreting legislation to mean something other

than what it clearly says is a measure of last resort, to avoid “great injustice” or an

outcome that could be characterized, without exaggeration, as an absurdity and an

utter frustration of the apparent purpose of the legislation. [Citation.]’ ” Illinois

State Treasurer v. Illinois Workers’ Compensation Comm’n, 2015 IL 117418, ¶ 39

(quoting Dusthimer v. Board of Trustees of the University of Illinois, 368 Ill. App.

3d 159, 168-69 (2006)).

¶ 69 The apparent purpose of section 4-22(a)(1) is to exclude animals from the city that

cause annoyance and distress to others by damaging their property. Because people grow attached

to their dogs, these items of personal property tend to be especially cherished. Commonly, dogs

are treated more as members of the family than as mere chattels. The killing of a beloved dog can

cause considerably more anguish than other kinds of property damage. Therefore, interpreting

“personal property” in accordance with its plain meaning, as including dogs, would not be an utter

frustration of the apparent purpose behind section 4-22(a)(1), namely, saving Peoria residents from

the trauma and expense of animal-inflicted property damage. See id.

¶ 70 Only the utter-frustration standard can override clear statutory language (or clear

language in an ordinance). In pari materia will not do it. As a matter of fact, the in pari materia

canon of construction that Couture invokes is an “extrinsic aid for construction of an ambiguous

- 25 - statute.” (Emphasis added.) Golden v. Puccinelli, 2016 IL App (1st) 150921, ¶ 16. “It is

fundamental that before the rule of in pari materia is applied, the statute to be construed must

be found to be ambiguous.” People v. 1946 Buick, VIN 34423520, 127 Ill. 2d 374, 377 (1989). A

statutory provision is ambiguous if it is “capable of being understood in two or more different

senses by reasonably well-informed people.” Wal-Mart Stores, Inc. v. Industrial Comm’n, 324 Ill.

App. 3d 961, 967 (2001). Section 1-2 (Peoria City Code § 1-2 (adopted 1957)) defines “personal

property” in plain, simple language that is not susceptible to different interpretations. Because the

statutory language is unambiguous, there is no occasion for applying the doctrine of

in pari materia. See 1946 Buick, 127 Ill. 2d at 377; Wal-Mart, 324 Ill. App. 3d at 967.

¶ 71 Just because it is possible to imagine circumstances in which a clearly worded

ordinance would work an injustice, that is no justification for rewriting the ordinance in the guise

of interpretation. To be sure, we can see the unfairness of penalizing a dog’s owner if, for instance,

the dog were bitten and bit back. Applied to those circumstances, section 4-22(a)(1) could indeed

be regarded as less than “ ‘optimal public policy.’ ” Illinois State Treasurer, 2015 IL 117418, ¶ 39.

But just because section 4-22(a)(1) would be unfair in some circumstances, that is no excuse for

second-guessing its plain language, especially if circumstances could be posited in which the

ordinance might make more sense. After all, dogs sometimes escape—they sometimes slip the

leash or dig under the fence—and out of playfulness, curiosity, or sociability, they approach dogs

on other properties. The city council could have decided that, if the landowner’s dog chased such

a trespassing dog off the premises by, say, nipping at it without causing any real injury, no action

would be warranted. But if the landowner’s dog ruthlessly killed the wandering poodle that

ventured onto the front lawn, maybe action would be warranted. Maybe such a dog would be too

violent and too much of a risk to have within city limits. The city council chose to draw the line at

- 26 - property damage. The line was drawn with a broad brush. Just because the line is, perhaps,

imperfect and could be drawn with greater refinement, we will not “interpret” the ordinance as

meaning something other than what it plainly says. See id.

¶ 72 It seems to us there is no getting around it: by killing Salmon’s dog, Couture’s dog

“[d]amage[d] *** personal property” within the plain meaning of section 4-22(a)(1) (Peoria City

Code § 4-22(a)(1) (amended Jan. 28, 2020)). Therefore, we affirm the finding of guilt on that

section.

¶ 73 3. Section 4-22(a)(2)

¶ 74 The circuit court also found that Couture had violated section 4-22(a)(2) of the

Peoria City Code, which provided as follows:

“(a) No person shall own, possess, or harbor a nuisance animal within the

city. An animal, other than a dog trained for law enforcement in the performance

(2) Causes unsanitary, dangerous or unreasonably offensive conditions.”

Id. § 4-22(a)(2).

¶ 75 The circuit court found that the bloodstain on the carpet of the elevator lobby was

an unreasonably offensive condition. The question for us is whether that finding is against the

manifest weight of the evidence. See Gambino v. Boulevard Mortgage Corp., 398 Ill. App. 3d

21, 51 (2009). A finding is against the manifest weight of the evidence only if it is apparent,

from the evidence in the record, that the trier of fact should have reached the opposite finding or

only if the finding “appear[s] to be unreasonable, arbitrary, or not based on the evidence.”

Eychaner v. Gross, 202 Ill. 2d 228, 252 (2002). We are unable to say that it was unreasonable,

- 27 - arbitrary, or not based on the evidence to characterize the bloodstain on the carpet as an

unreasonably offensive condition, especially considering that (1) the bloodstain came back after

the carpet was scrubbed and dried and (2) an inference could be drawn that the section of carpet

consequently had to be replaced.

¶ 76 Couture complains that the supposed replacement of the section of carpet rested

on hearsay, specifically, Salmon’s testimony that Rose, the building manager, told him she

would have the section of carpet replaced. In the trial transcript, however, we do not see any

hearsay objection to that portion of Salmon’s testimony. “It is well established that when hearsay

evidence is admitted without an objection, it is to be considered and given its natural probative

effect.” Jackson v. Board of Review of the Department of Labor, 105 Ill. 2d 501, 508 (1985).

¶ 77 In sum, under our deferential standard of review (see Gambino, 398 Ill. App. 3d at

51), we see no reason to gainsay the circuit court’s finding that Couture additionally violated

section 4-22(a)(2) (Peoria City Code § 4-22(a)(2) (amended Jan. 28, 2020)). Therefore, we affirm

the finding of guilt on that section as well.

¶ 78 E. Canine Propensity Evidence

¶ 79 On February 18, 2021, Couture e-mailed to the assistant state’s attorney a witness

list. According to the witness list, (1) Sacco would “testify regarding her evaluation of Mr.

Couture’s dog,” (2) Monroe and Velde would “testify regarding the disposition and behavior of

Mr. Salmon’s dogs and Mr. Couture’s dog,” and (3) Howard would “testify to the disposition and

behavior of Mr. Couture’s dog.”

¶ 80 In response to the e-mail, the assistant state’s attorney filed a motion in limine to

exclude canine propensity evidence from the trial. The motion argued, “The propensity of either

- 28 - dog is not relevant to determine whether Mr. Couture’s dog was a nuisance at the relevant time,

and propensity is not outlined as [a] yardstick for any of the subsections.”

¶ 81 On February 19, 2021, after hearing arguments, the circuit court granted the motion

in limine, agreeing that dog propensity was irrelevant. The court explained, “[W]ith regard to

testimony that *** attaches to propensity, or what you’re calling ‘dog character,’ I do not find any

support that allows for that when the citation or the ordinance applied against the defendant is the

one used.”

¶ 82 On appeal, Couture challenges that ruling. He contends that canine propensity

evidence would have been relevant to his claim that the cited provisions of the Peoria City Code,

as applied to him, violated substantive due process. He explains that he “was planning to use

propensity evidence to show that Salmon lied about the circumstances surrounding the incident

and that the application of section 4-22(a) to Couture was absurd under the true circumstances.”

¶ 83 Salmon testified that his dogs were on leashes and that he was holding the leashes

when Couture’s dog bit and killed one of his dogs. Couture, on the other hand, testified that he

was holding his dog on a leash when Salmon’s dog, dragging its leash, began barking and

approached Couture and his dog, whereupon Couture’s dog bit and killed Salmon’s dog (although

Couture did not see his dog inflict the bite).

¶ 84 Couture seems to be suggesting that if, in killing Salmon’s dog, Couture’s dog acted

out of necessity to defend itself or Couture, then section 4-22(a), as applied to Couture, would be

absurd—or, to use the language of case law, “the ordinance, as applied to him, [would be] palpably

arbitrary, capricious, and unreasonable and [would] bear[ ] no rational relationship to the health

and safety of the community.” City of Des Plaines v. Gacs, 65 Ill. App. 3d 44, 48 (1978). In an as-

applied challenge, “a plaintiff protests against how an enactment was applied in the particular

- 29 - context in which the plaintiff acted or proposed to act.” Napleton v. Village of Hinsdale, 229 Ill.

2d 296, 306 (2008). Let us assume, for the sake of argument, that a dog’s merely approaching

another dog while barking can be reasonably characterized as an attack necessitating a lethal

response. Even so, it is unclear how canine propensity evidence would have tended to prove that

Salmon was lying and that Couture was telling the truth. Either Salmon had hold of the leash, or

he did not. Salmon never claimed that his dog lacked a propensity to bark. Nor did he claim that,

unrestrained, his dog would have lacked a propensity to approach other dogs.

¶ 85 Part of the problem here might be that we do not know what Couture’s witnesses

would have said. We do not know because Couture made no offer of proof.

¶ 86 When the circuit court grants a motion in limine, the ruling is considered to be

interlocutory and is open to reconsideration in the course of the trial. Cundiff v. Patel, 2012 IL App

(4th) 120031, ¶ 20. The court reserves the right to change its mind as the trial unfolds and as the

context becomes clearer for the evidence in question. Therefore, on pain of forfeiting appellate

review of the granting of a motion in limine, the proponent of the evidence must follow up by

making an offer of proof in the trial itself. Id. Case law requires an offer of proof for two reasons:

(1) the opposing counsel cannot make an informed objection, and the court cannot make an

informed ruling, unless they have a clear idea what the proffered evidence is, and (2) the reviewing

court needs a clear description of the proffered evidence to decide whether the circuit court’s ruling

in the trial was a prejudicial abuse of discretion. See id.

¶ 87 To serve those dual purposes, the offer of proof has to be more than a vague gesture

at some subject matter. It has to be more than the statement of a topic. Cundiff explains how an

offer of proof is made:

- 30 - “A formal offer of proof is made whereby counsel offers the proposed evidence or

testimony by placing a witness on the stand, outside the jury’s presence, and asking

him questions to elicit with particularity what the witness would testify to if

permitted to do so. [Citation.] Counsel can make an adequate offer of proof if he

informs the trial court, with particularity, of the substance of the witness’[s]

anticipated answer.” (Internal quotation marks omitted.) Id.

From the e-mail that Couture’s attorney sent to the assistant state’s attorney on February 18, 2021,

we know the topic of Sacco’s expected testimony: “her evaluation of Mr. Couture’s dog.” But we

do not know what Sacco would have said about Couture’s dog. Likewise, we know the topics of

Monroe’s and Velde’s expected testimony: “the disposition and behavior of Mr. Salmon’s dogs

and Mr. Couture’s dog.” But we do not know what Monroe and Velde would have said about the

dispositions and behaviors of those dogs. We know the topic of Howard’s expected testimony, too:

“the disposition and behavior of Mr. Couture’s dog.” But we do not know what Howard would

have said about the disposition and behavior of Couture’s dog. In other words, we do not know,

with particularity, the substance of the witnesses’ answers. See id.

¶ 88 Even so, Couture cites Dillon v. Evanston Hospital, 199 Ill. 2d 483, 495 (2002),

and Reuter v. Korb, 248 Ill. App. 3d 142, 154 (1993), for the proposition that “an offer of proof is

not required where it is apparent that the trial court clearly understood the nature and character of

the evidence sought to be introduced” (Dillon, 199 Ill. 2d at 495). In Dillon, however, the

defendants put Dr. John Raaf on the stand, and after “the equivalent of approximately 20 record

pages of testimony,” it was obvious that Dr. Raaf was about to offer cumulative testimony that Dr.

Stephen Sener had met the medical standard of care. Id. at 494. Likewise, in Reuter, it was obvious

what the accident reconstruction expert Roland Ruhl would have said on the stand. When granting

- 31 - the defendant’s motion in limine to bar Ruhl from testifying, the circuit court had before it a

transcript of Ruhl’s deposition testimony. Reuter, 248 Ill. App. 3d at 157. “Consequently, the court

was well apprised regarding what the evidence would be if Ruhl were allowed to testify.” Id.

¶ 89 By contrast, the circuit court in this case was not well apprised what Sacco, Monroe,

Velde, and Howard would have said about Couture’s dog and Salmon’s dogs. Nor are we well

apprised. We decline to speculate. Therefore, we conclude that Couture has forfeited the issue of

whether the circuit court erred by granting the motion in limine. See Koehler v. Packer Group,

Inc., 2016 IL App (1st) 142767, ¶ 108; In re Estate of Nicholls, 2011 IL App (4th) 100871, ¶ 36.

¶ 90 III. CONCLUSION

¶ 91 For the foregoing reasons, we reverse the finding that Couture violated section

4-22(a)(6) of the city code (Peoria City Code § 4-22(a)(6) (amended Jan. 28, 2020)). But we

otherwise affirm the circuit court’s judgment, including the findings on the remaining two

provisions of the city code (id. § 4-22(a)(2), (6)) as well as the fine and the court costs.

¶ 92 Affirmed in part and reversed in part.

- 32 - No. 3-21-0091

Decision Under Review: Appeal from the Circuit Court of Peoria County, No. 20-OV- 428; the Hon. Kevin W. Lyons, Judge, presiding.

Attorneys Joseph E. Couture, of Peoria, appellant pro se. for Appellant:

Attorneys Jodi Hoos, State’s Attorney, of Peoria (Dana Hughes, Assistant for State’s Attorney, of counsel), for appellees. Appellee:

- 33 -