2023 IL App (5th) 210375-U NOTICE NOTICE Decision filed 03/21/23. The This order was filed under text of this decision may be NO. 5-21-0375 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
PATRICK FERRARI and BARBARA FERRARI, ) Appeal from the ) Circuit Court of Plaintiffs-Appellants, ) Madison County. ) v. ) No. 19-SC-2309 ) THE VILLAGE OF GLEN CARBON, ) Honorable ) Thomas W. Chapman, Defendant-Appellee. ) Judge, presiding. ______________________________________________________________________________
JUSTICE BARBERIS delivered the judgment of the court. Presiding Justice Boie and Justice Welch concurred in the judgment.
ORDER
¶1 Held: Where the appellants failed to provide a record adequate to allow us to review their claims, we presume that the trial court correctly applied the law and that the missing portions of the record would have supported the court’s rulings. Where the appellants’ claim of judicial bias is based upon statements the court allegedly made that do not appear in the limited record and upon allegedly erroneous rulings, the appellants cannot overcome the presumption that the trial judge was fair and impartial. Where the court ruled in favor of the appellants, we conclude that any error did not result in prejudice to them.
¶2 The plaintiffs, Patrick and Barbara Ferrari, filed a pro se small claims complaint against
the defendant, the Village of Glen Carbon, alleging that a commercial mower hired by the
defendant entered onto their property to mow their yard and damaged Barbara Ferrari’s vehicle.
At trial, they presented evidence that the defendant charged them $525 for the mowing and placed
a lien on their property for that amount when they refused to pay it. The court ruled in the plaintiffs’
1 favor and awarded them damages for the cost of repairing the vehicle and for the loss of its use.
The court did not award damages for the cost of mowing or order the lien removed. On appeal, the
plaintiffs argue that the court (1) erred by refusing to allow further cross-examination of one of the
defendants’ witnesses after redirect examination, (2) exhibited a bias in favor of the defendant,
and (3) engaged in an improper ex parte communication with the defendant’s attorney. The
plaintiffs contend that these errors resulted in the court’s decision not to award them $525 for the
cost of mowing and additional unspecified damages for trespass. We affirm.
¶3 I. BACKGROUND
¶4 On August 31, 2018, the defendant’s employee, Jamie Foster, sent a letter to the plaintiffs
informing them that they were required to mow the grass on their four-acre property to comply
with an ordinance of the Village of Glen Carbon. Patrick Ferrari discussed the matter with Foster
by telephone, explaining to her that he had not cut his grass because his mower was broken. Foster
gave the plaintiffs an extension until the end of October 2018 to cut their grass. However, on
September 28, a commercial mower hired by the Village of Glen Carbon entered the plaintiffs’
property and cut their grass. While attempting to turn the mower, the individual driving it struck
and damaged Barbara Ferrari’s vehicle.
¶5 At some point, the plaintiffs were billed for the mowing company’s services. Because they
did not pay the bill, the Village of Glen Carbon placed a “weed lien” on their property in the
amount of $525. This amount includes the $450 billed by the contractor, Full Spectrum Outdoor
Services, Inc. (Full Spectrum) along with late fees and administrative fees. The plaintiffs received
a letter warning them of the possibility of a lien in May 2019, before they filed the instant
complaint, but it does not appear that they received notice that the lien had been recorded until
October or November of 2019, while this matter was pending.
2 ¶6 On July 19, 2019, the plaintiffs filed a pro se small claims complaint against the Village of
Glen Carbon and the Glen Carbon Police Department. They filed four other small claims
complaints against the Village of Glen Carbon and related entities on or around the same date. In
their complaint in this case, the plaintiffs alleged only that the commercial mower hired by the
defendants entered their property without permission and struck Barbara Ferrari’s vehicle, causing
damage. They requested a total of $4230.62 in damages, representing $3880.62 for the repair of
the vehicle and $350 for the loss of its use while it was being repaired. The complaint contained
no allegations or requests for relief related to the mowing bill.
¶7 On September 3, 2019, the defendants filed a motion to dismiss the plaintiffs’ complaint,
and on September 4, they filed an amended motion to dismiss. They alleged that the plaintiffs’
complaint did not identify any acts or omissions by the named defendants or their employees
“beyond failing to supervise the actions of a ‘commercial mower.’ ” They argued that, as such, the
conduct of individual employees was immune from liability under section 2-204 of the Local
Governmental and Local Governmental Employees Tort Immunity Act (745 ILCS 10/2-204 (West
2016)) and that this immunity extended to the entities named as defendants under section 2-109 of
the same act (id. § 2-109). In addition, the defendants argued that the complaint failed to state a
claim against the Glen Carbon Police Department because it did not make any allegations
concerning conduct by any employees of the police department. We note that although the court
did not rule on the motion directly, the court addressed the issue of immunity in its final judgment.
¶8 On January 8, 2020, the plaintiffs filed a motion asking the court to set a trial date in this
matter as soon as possible. On February 3, 2020, the court entered an order setting this and the
four other pending small claims cases involving the same parties for a nonjury trial on May 1,
2020. On February 5, the plaintiffs filed a motion asking the court to set this case “as a separate
3 stand-alone jury trial.” (Emphasis in original.) The defendants filed a response to that motion on
February 18, arguing that the plaintiffs waived their right to a jury by failing to request a jury trial
in their complaint, and that a jury trial would cause considerable inconvenience and expense to the
defendants. In response to the plaintiffs’ request for a separate trial in this matter, the defendant
noted that although the court had scheduled hearings in all five pending cases for the same day,
the matters had not been consolidated. The following day, the plaintiffs filed an additional motion,
applicable to all pending cases, requesting separate trial dates in each.
¶9 Pending motions in all five cases came for a hearing on March 12, 2020. At that hearing,
the plaintiffs voluntarily dismissed their claims against the Glen Carbon Police Department. The
court granted the plaintiffs’ request for a jury trial in one of the pending cases but set the remaining
four cases—including this one—for a nonjury trial on the same day.
¶ 10 After multiple delays, these matters proceeded to trial on July 30, 2021. The plaintiffs
introduced into evidence several photographs showing the damage to Barbara Ferrari’s vehicle
along with other exhibits pertinent to this case. These exhibits included Foster’s August 31, 2018,
letter informing the plaintiffs that they were required to cut their grass by September 14, 2018, and
keep it mowed to a height of less than eight inches to comply with the requirements of village
ordinances.
¶ 11 Another pertinent exhibit was a copy of Jamie Foster’s notes documenting a telephone
conversation she had with Patrick Ferrari on September 12, 2018. Foster’s notes indicate that
Ferrari admitted to her that he had not cut his grass in 1½ months and explained that this was
because his mower was broken. He told her he would attempt to rent a bush hog that weekend, but
he would be unable to cut the grass before the September 14 deadline. A handwritten statement
signed by Patrick Ferrari appears underneath Foster’s typed notes. The statement indicates that
4 Foster agreed to an extension, giving the plaintiffs until October 31, 2018, to comply. We note
that, although the record on appeal does not include any of Foster’s trial testimony, the trial court
mentioned in its order that Foster testified she granted the plaintiffs an extension until the end of
October.
¶ 12 The record also includes (1) a copy of the pertinent Village of Glen Carbon ordinances,
(2) a police report detailing the plaintiffs’ description of the incident in which the vehicle was
damaged by the mower, and (3) an estimate from an auto body repair shop showing that the cost
to repair Barbara Ferrari’s damaged vehicle would be $3880.62. In addition, the record contains a
May 2019 letter informing the plaintiffs that they had until June 10, 2019, to pay Full Spectrum’s
bill or a lien would be placed on their property. The final pertinent exhibit is a November 2019
letter informing the plaintiffs that a “weed lien” in the amount of $525 had been placed on their
property due to their failure to pay the mowing bill. Attached to the letter was a notice of lien dated
October 28, 2019.
¶ 13 The plaintiffs have not provided this court with a complete transcript of the hearing.
Instead, they have provided us with an 18-page excerpt. The excerpt begins at the end of the
plaintiffs’ cross-examination of Village Streets Superintendent Daniel Lawrence. Acting as his
own attorney, Patrick Ferrari asked Lawrence whether the Village of Glen Carbon usually grants
an extension to a resident “when there is an extenuating circumstance or the ordinance requires a
tremendous amount of work or a tremendous amount of expense to get into compliance.” Lawrence
replied, “I’ve heard of a few, yes, sir.” Ferrari then asked, “But once when—you realize that when
I was granted an extension by the officer that wrote the memo, that Mr. Coody ignored it and told
5 them to mow anyway?” 1 Lawrence replied, “That was his discretion, sir.” Ferrari then stated,
“Okay. Thank you. I can’t think of anything else, Your Honor.”
¶ 14 The defendant’s counsel, Catherine Schwarze, then began her brief redirect examination.
Pertinent to this case, she asked:
“Mr. Lawrence, earlier Mr. Ferrari was asking you about these documents such as the letter
sent to him [on] August 31 regarding the tall grass and the bill from Full Spectrum
indicating the date it was mowed. Do you have any reason to believe that those documents
don’t mean what they—what’s written on them?”
Lawrence responded, “Absolutely none, no.” Schwarze then asked him whether there were dates
on the photographs admitted into evidence. Lawrence testified that there were no dates on the
photographs. We note that the record contains photographs of the damage to Barbara Ferrari’s
vehicle as well as photographs related to the other cases tried on the same day as this one. We
presume the question referred to all the photographs, including those pertinent to this case. The
remainder of Schwarze’s redirect examination related to other cases.
¶ 15 Next, the court questioned Lawrence. None of the court’s questions related to this case.
When the court finished its examination, the following exchange occurred:
“THE COURT: Alright. Thank you very much for your time. We’ve spent all day.
Thank you.
MR. FERRARI: I have cross-examination.
THE COURT: We are out of time today. I do have a couple of observations.
1 We note that the record in a separate appeal currently pending before us involving the same parties contains a pleading indicating that David Coody was Jamie Foster’s supervisor when the events at issue transpired and that he overrode her decision to grant the plaintiffs an extension. See Bush v. J&J Transmissions, Inc., 2017 IL App (3d) 160254, ¶ 11 (noting that we take judicial notice of court records in other cases); Auto-Owners Insurance Co. v. Konow, 2016 IL App (2d) 150823, ¶ 5 (same). 6 MR. FERRARI: I do have—
THE COURT: I’m sorry. You can’t say that you haven’t had a fair and decent
hearing in terms of time.
MR. FERRARI: She brought up questions—
THE COURT: The Court has to exercise its discretion with respect to the
management of the court time. And I have a couple of questions for you in order to sort it
out. So it’s been—instead of [closing argument], I would appreciate if you would give me
the opportunity to ask you two a couple of questions of it. Is that fair?
MR. FERRARI: Yes, sir.
MS. SCHWARZE: Yes, Your Honor.”
The excerpt from the transcript ends after this exchange.
¶ 16 On October 28, 2021, the court entered a detailed written order containing its findings. The
court first considered the applicability of the Local Governmental and Local Governmental
Employees Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 2016)). The court noted that
counsel for the defendant did not cite two provisions of that act which “seem[ed] relevant given
the allegations of the complaint.” Those provisions were section 2-202, which provides immunity
for acts or omissions involving the exercise of discretion (see id. § 2-202), and section 2-209,
which provides immunity for local governmental employees who enter the property of another
“where such entry is expressly or impliedly authorized by law” (see id. § 2-209). The court then
noted that the defendant “was on the right track, though, when it cited to [section] 2-204.” That
statute provides that “a public employee, as such and acting within the scope of his employment,
is not liable for an injury caused by the act or omission of another person.” Id. § 2-204.
7 ¶ 17 The court explained that in most cases, section 2-204 would apply and provide immunity
from liability to municipal employees and entities for the actions of third parties such as the
contractor, Full Spectrum. The court found that provision to be inapplicable in the instant case,
however, for four reasons.
¶ 18 First, the court found that the contractor entered the plaintiffs’ property at the direction of
the Village of Glen Carbon. The court explained that under common law principles of tort law, a
defendant may be liable for trespass if it is directed by that party. See Dial v. City of O’Fallon, 81
Ill. 2d 548, 556-57 (1980); Schweihs v. Chase Home Finance LLC, 2021 IL App (1st) 191779,
¶ 30.
¶ 19 Second, the court found that the entry onto the plaintiffs’ property to cut their grass was
not authorized by local ordinances. The court found that the plaintiffs’ property was rural or semi-
rural and explained that an ordinance “requiring a rural or semi-rural resident to mow all his ground
becomes problematic under a purely aesthetic justification.” Although the court noted that a local
ordinance required grass on rural properties to be cut if it posed a fire hazard, the court found that
there was no evidence in this case that the plaintiffs’ grass constituted a fire hazard or raised any
other safety concerns.
¶ 20 Third, the court found that there was procedural unfairness in granting the plaintiffs an
extension until the end of October and then sending in a mowing crew prior to that time without
notice. Because of this unfairness, the court found that the entry was “neither expressly nor
impliedly authorized by law.”
¶ 21 Fourth, the court found that, even assuming the defendant had a privilege to enter the
plaintiffs’ property to abate a nuisance (or to direct a third party to do so), such privilege “must be
exercised in a reasonable manner.” The court further explained that any intentional, reckless, or
8 negligent harm beyond that necessary to abate the nuisance is subject to liability. See Restatement
(Second) of Torts § 201 (1965).
¶ 22 The court found in favor of the plaintiffs and awarded them damages of $4230.62. As we
stated earlier in this order, that was the amount requested by the plaintiffs in their complaint. The
court did not address the question of the contractor’s bill or the lien. This appeal followed.
¶ 23 II. ANALYSIS
¶ 24 On appeal, the plaintiffs argue that the court erred by not permitting recross-examination
of Lawrence. In addition, they argue that the court exhibited a bias in favor of the defendant and
engaged in ex parte communications with the defendant’s attorney. We reject these contentions.
¶ 25 A. Cross-Examination
¶ 26 The plaintiffs first contend that the court denied them the right to cross-examine Lawrence
after redirect examination and denied them the right to introduce into evidence records that would
have proven some of his testimony was false. In response to these arguments, the defendant
contends that (1) the court did not abuse its discretion in limiting the cross-examination of
Lawrence, (2) the plaintiffs forfeited this argument by failing to object at trial, and (3) the plaintiffs
cannot demonstrate that they were prejudiced by the court’s ruling because the court ruled in their
favor. We find that the plaintiffs did not forfeit this claim, but we otherwise agree with the
defendant.
¶ 27 As the defendant correctly points out, a party forfeits appellate review of any errors if the
party does not object at trial. See Sinclair v. Berlin, 325 Ill. App. 3d 458, 467 (2001). We agree
with the defendant that the plaintiffs forfeited any claims regarding the documentary evidence.
They acknowledge that they only attempted to present this evidence after trial as attachments to
various posttrial motions they filed. However, we do not believe they forfeited their arguments
9 concerning cross-examination. As previously discussed, Patrick Ferrari requested an opportunity
to conduct further cross-examination of Lawrence after redirect examination and questioning by
the court. When told he could not do so, Ferrari specifically stated that the defendant’s attorney
raised questions during redirect examination. Although he did not use the word “objection,” he
drew the issue to the court’s attention. As such, we find that the plaintiffs preserved the issue of
cross-examination for appellate review. We therefore turn our attention to the merits of their
contentions.
¶ 28 The scope and extent of cross-examination are matters within the trial court’s sound
discretion. Adams v. Sarah Bush Lincoln Health Center, 369 Ill. App. 3d 988, 998 (2007). On
appeal, we will not reverse absent a clear abuse of the court’s discretion that resulted in manifest
prejudice to the appellant. Id. An abuse of discretion occurs only when the trial court acts
arbitrarily, fails to use conscientious judgment, exceeds the bounds of reason, and ignores
recognized principles of law or when no reasonable person could take the position adopted by the
trial court. Id. at 1000.
¶ 29 In determining whether the court has abused its discretion in this case, we must also
emphasize that it was the plaintiffs’ duty, as the appellants, to provide us with a record on appeal
adequate to resolve their claims. Midwest Builder Distributing, Inc. v. Lord & Essex, Inc., 383 Ill.
App. 3d 645, 655 (2007). If there are gaps in the record that could materially affect our decision,
we must resolve any doubts created by those gaps against the appellants. Id.
¶ 30 In support of their contention that the court erred by declining to allow further cross-
examination of Lawrence, the plaintiffs assert that they were unable to counter testimony that
(1) the Village of Glen Carbon gave them proper notice before sending a commercial mower to
cut their grass, (2) the mowing was done in accordance with applicable ordinances, and (3) the
10 work was performed under supervision. They argue that if they had been given the opportunity to
cross-examine Lawrence further, the court “would have certainly decided differently and probably
in [their] favor to remove [the] $525 Property Lien and award Trespass damages.” We reject these
contentions for two reasons.
¶ 31 First, the record does not demonstrate that the court prevented the plaintiffs from cross-
examining Lawrence about the testimony they have identified on appeal at all, much less that the
court abused its discretion. Although the excerpt from the transcript included in the record on
appeal is brief, it includes the defendant’s entire redirect examination of Lawrence. Lawrence did
not testify during redirect that the plaintiffs were given proper notice, that the mowing was done
in accordance with applicable ordinances, or that the mowing was performed under appropriate
supervision. If he provided such testimony, he could only have done so during direct examination
or during the plaintiffs’ earlier cross-examination. As discussed previously, Patrick Ferrari was
permitted to cross-examine Lawrence until he could think of no further questions to ask. Thus, on
the record before us, there is no indication that the plaintiffs were prevented from questioning
Lawrence on any of these topics. To the extent that the gaps in the record leave any doubt, we must
resolve that doubt against the plaintiffs, as appellants, and presume that the missing portions of the
record supported the court’s ruling. See id. On the record before us we can find no abuse of
discretion.
¶ 32 Second, even assuming the court erred, the plaintiffs were not prejudiced by its ruling.
Reversal based on an evidentiary ruling is only warranted if the asserted error resulted in
substantial prejudice and affected the outcome of the trial. Wilbourn v. Cavalenes, 398 Ill. App.
3d 837, 848 (2010). “The party seeking reversal bears the burden of establishing such prejudice.”
Id.
11 ¶ 33 Here, the trial court found in favor of the plaintiffs and awarded them damages in the
amount of $4230.62, the amount they requested in their complaint. The plaintiffs nevertheless
argue, in essence, that they were prejudiced because they did not receive unspecified additional
damages for trespass. We disagree. A party is liable for trespass if that party intentionally intrudes
on the property of another, even without proof of actual harm to the property. Chicago Title Land
Trust Co. v. JS II, LLC, 2012 IL App (1st) 063420, ¶ 76. Absent proof of actual harm, the property
owner is entitled to nominal damages. Id. ¶ 77. However, the plaintiffs do not cite any authority to
support the proposition that a party who proves actual harm and recovers damages for that harm
is entitled to additional damages, and we are aware of no such authority.
¶ 34 The plaintiffs also argue that because of the court’s ruling, they were not awarded any relief
related to the $525 “weed lien” placed on their property. Although the record does contain evidence
related to the bills the plaintiffs received for the mowing services and the lien placed on their
property as a result of their failure to pay those bills, there is no indication in the record before us
that the plaintiffs ever requested or demonstrated that they were entitled to additional relief related
to the bills or the lien. For these reasons, the plaintiffs are unable to satisfy their burden of
demonstrating that they were prejudiced by the court’s alleged error in limiting cross-examination.
As such, reversal would not be warranted even if we found that the court abused its discretion.
¶ 35 B. Judicial Bias and Ex Parte Communication
¶ 36 The plaintiffs next contend that the court demonstrated that it was biased against them and
in favor of the defendant and that the court engaged in an improper ex parte conversation with the
defendant’s attorney. We consider these claims together because they are factually intertwined.
¶ 37 The plaintiffs assert that the court demonstrated its bias in favor of the defendant in three
ways. They first allege that the court briefly paused the trial “to openly and freely” give legal
12 advice to the defendant’s attorney, Catherine Schwarze, and to suggest a “new, or alternate, legal
strategy” to her. Second, they allege that the court further demonstrated its bias by engaging in an
ex parte conversation with Schwarze at the end of the trial, telling her that she would be given time
to file written arguments with the court. They allege that this was witnessed by Jamie Foster and
both plaintiffs. Third, the plaintiffs contend that the trial judge “acted as the Defense Attorney
himself” when he “continued to cite [section] 2-209 as a defense argument” after repeatedly
mentioning that the defendants did not cite that provision.
¶ 38 The plaintiffs argue that the court ran afoul of Judicial Canon 3(A)(5) and (A)(9) (Ill. S.
Ct. R. 63(A)(5), (A)(9) (eff. Dec. 16, 2020)) by demonstrating bias and engaging in an ex parte
communication. They further contend that the court’s bias led to “incorrect conclusions,” and that
“[t]here should have been a Criminal Trespass and Criminal Damage to Property Award.” We
reject these contentions for two reasons.
¶ 39 First, the record does not support the plaintiffs’ allegations. There is no evidence in the
record that the court interrupted the trial to give Schwarze legal advice or that the court engaged
in any improper ex parte discussions. As we have already explained, doubts created by gaps in the
record must be resolved against the plaintiffs as appellants. Midwest Builder Distributing, 383 Ill.
App. 3d at 655. Although the trial court did mention in its order that section 2-209 of the Local
Governmental and Local Governmental Employees Tort Immunity (745 ILCS 10/2-209 (West
2016)) had potential application to this case, the court explicitly found that no immunity provisions
applied and entered judgment in favor of the plaintiffs. Thus, the record is inadequate to support
the plaintiffs’ first two allegations of judicial bias and actually refutes their third allegation.
¶ 40 Second, trial judges are presumed to be fair and impartial. It is the burden of the party
alleging judicial bias to overcome this presumption. Eychaner v. Gross, 202 Ill. 2d 228, 280
13 (2002). This requires “evidence of prejudicial trial conduct and evidence of the judge’s personal
bias.” Id. Allegedly erroneous adverse rulings are not sufficient to demonstrate bias. Id. Here, the
plaintiffs have made vague allegations concerning the court’s interactions with opposing counsel
that are not supported by the record and have argued that the court further demonstrated bias by
erroneously relying on a statutory provision not cited by the defendant. This is insufficient to
overcome the presumption that the trial judge was fair and impartial.
¶ 41 Finally, it is worth reiterating that the court ruled in the plaintiffs’ favor and awarded them
all the damages they sought. Although the plaintiffs claim that they should have been awarded
damages for criminal trespass, this is a civil suit and, as discussed earlier, they were awarded
damages for trespass. Ordinarily, in cases such as this involving harm to property that can be
repaired, the measure of damages for trespass is the cost of repair. See, e.g., First Baptist Church
of Lombard v. Toll Highway Authority, 301 Ill. App. 3d 533, 545 (1998); Wujcik v. Gallagher &
Henry Contractors, 232 Ill. App. 3d 323, 329-30 (1992); Rodrian v. Seiber, 194 Ill. App. 3d 504,
509 (1990). Here, the plaintiffs were awarded damages for the cost of repairing the damaged
vehicle and for the loss of use of the vehicle while it was being repaired.
¶ 42 III. CONCLUSION
¶ 43 For these reasons, we affirm the trial court’s judgment.
¶ 44 Affirmed.