Mathis v. Crawford

2021 IL App (5th) 190012-U

• Court: Appellate Court of Illinois
• Decided: July 22, 2021
• Docket: 5-19-0012
• Status: Unpublished

Opinion

2021 IL App (5th) 190012-U NOTICE NOTICE Decision filed 07/22/21. The This order was filed under text of this decision may be NO. 5-19-0012 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Peti ion for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

DEREK D. MATHIS SR., ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Madison County. ) v. ) No. 18-SC-3020 ) ALFRED D. CRAWFORD JR., ) Honorable ) Thomas W. Chapman, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

PRESIDING JUSTICE BOIE delivered the judgment of the court. Justices Moore and Vaughan concurred in the judgment.

ORDER

¶1 Held: We affirm the judgment of the trial court’s finding liability but reverse the trial court’s award of damages where there was insufficient evidence to determine the value of Mathis’s three dogs.

¶2 Derek Mathis Sr., plaintiff, sought damages in small claims court from his neighbor

Alfred Crawford Jr., defendant, for the destruction of three dogs owned by Mathis and killed by

dogs that were owned by Crawford. The circuit court of Madison County found in favor of

Mathis and awarded damages in the amount of $5000.

¶3 I. BACKGROUND

¶4 Mathis filed a “small claim complaint” on September 7, 2018, which alleged that

Crawford’s dogs killed three of Mathis’s dogs at different times. One was a German Shepherd,

one was a German Shepherd mix, and one was a German Shepherd puppy. Mathis claimed

1 damages in the amount of $10,000. Crawford filed an answer to the complaint, requesting a

bench trial and including the statement: “Agree to disagree.” The trial court conducted a trial on

the merits on December 12, 2018. On December 12, 2018, the trial court entered judgment in

favor of Mathis and against Crawford in the amount of $5000. On January 4, 2019, Crawford

filed a notice of appeal. In his notice of appeal, Crawford requested that this court amend the trial

court’s award of damages to a lesser amount, specifically $500.

¶5 There was no court reporter present during the trial. A proposed bystander’s report,

completed pursuant to Illinois Supreme Court Rule 323(c) (eff. July 1, 2017), was submitted to

the trial court and a hearing was held to certify the report on June 19, 2019. The trial court

required that the bystander’s report be amended. The defendant filed an amended bystander’s

report, which was prepared by appellate counsel and certified by the trial court on June 28, 2019.

¶6 The relevant portions of the bystander’s report follow. Two witnesses testified, Mathis

and Crawford. The trial court asked Mathis what he expected out of the trial. Mathis replied that

he wanted Crawford to do something about his dogs. The trial court asked if Mathis wanted

Crawford to keep his dogs in his yard. Mathis explained that he had three German Shepherds

killed and he was tired of Crawford’s dogs getting out and killing Mathis’s dogs.

¶7 The testimony at trial indicated that 15 years prior, Crawford’s dogs had killed Mathis’s

German Shepherd puppy. Crawford gave Mathis a pit bull puppy, which Mathis accepted.

Between seven to eight years later, Crawford’s dogs got out of their fence and killed Mathis’s

German Shepherd. Less than a year before trial, Crawford’s dogs left the yard through a gap in

the fence and killed another of Mathis’s German Shepherds. Crawford explained that none of

this would have happened if Mathis had taken care of his own dogs. Mathis used to have a

kennel, but he tore it down. After that, Mathis allowed his dogs to run around the neighborhood.

2 Crawford testified that he often saw Mathis’s dogs running around and that when he did, he

would pick them up and return them to Mathis. Mathis’s dogs were killed some distance from

their own yard and just outside of Crawford’s yard. Crawford had a fence around his yard.

¶8 The testimony about Mathis’s dogs was that they were German Shepherds. The first one

killed was a puppy. The last one killed was an older dog. Further, there was no or insufficient

evidence of dog-on-dog provocation, that is, that Mathis’s dogs provoked Crawford’s dogs to

attack, to constitute any defense in the case.

¶9 II. ANALYSIS

¶ 10 On appeal, Crawford raises two issues. First, that the trial court should be reversed

because two of Mathis’s claims were time barred by the five-year statute of limitations period for

the filing of actions for damage to personal property contained in section 13-205 of the Code of

Civil Procedure (Code) (735 ILCS 5/13-205 (West 2018)). Crawford argues first that he should

not have been expected to file a written affirmative defense alleging that the earlier claims were

barred by the statute of limitations. Next, Crawford argues that the trial court should have

asserted the affirmative defense on Crawford’s behalf sua sponte, pursuant to Illinois Supreme

Court Rule 286(b) (eff. Aug. 1, 1992). Crawford argues further that Mathis presented insufficient

evidence on the issue of damages for the trial court to calculate damages.

¶ 11 We review challenges to a trial court’s bench-trial ruling under the manifest weight of the

evidence standard. Jackson v. Bowers, 314 Ill. App. 3d 813, 818 (2000). Crawford argues that

the applicability of a statute of limitations is a matter of law which is to be reviewed de novo.

Hassebrock v. Ceja Corp., 2015 IL App (5th) 140037, ¶ 25. We agree, however, the trial court

did not rule on the applicability of the statute of limitations, as the statute of limitations was not

3 raised in the trial court. The interpretation of a supreme court rule is a question of law reviewable

under the de novo standard of review. People v. Brindley, 2017 IL App (5th) 160189, ¶ 15.

¶ 12 Initially, we note that Mathis did not file an appellee brief in this matter. However, when

an appellee fails to file a brief, reversal is not automatic. See First Capitol Mortgage Corp. v.

Talandis Construction Corp., 63 Ill. 2d 128, 131 (1976). Here, we are capable of addressing the

issues raised in the defendant’s appeal because the record is simple, and the claimed errors can

be easily decided without the benefit of the appellee’s brief.

¶ 13 A. Statute of Limitations

¶ 14 A dog is an item of personal property in the eyes of the law. Jankoski v. Preiser Animal

Hospital, Ltd., 157 Ill. App. 3d 818, 820 (1987). In the State of Illinois there is a five-year

limitation period for the filing of actions for damage to real or personal property. 735 ILCS 5/13-

205 (West 2018). The statute of limitations is an affirmative defense, which is one that “gives

color to the opposing party’s claim and then asserts new matter by which the apparent right is

defeated.” Worner Agency, Inc. v. Doyle, 121 Ill. App. 3d 219, 222 (1984). The burden of

proving an affirmative defense is upon the party asserting it. In re Estate of Comiskey, 146 Ill.

App. 3d 804, 808 (1986). A statute of limitations may be waived if not raised in the trial court.

In re Marriage of Ostrander, 2015 IL App (3d) 130755, ¶ 17.

¶ 15 Crawford argues that because Mathis’s first two claims were for dogs killed more than

five years prior to the filing of the complaint, the statute of limitations barred those claims, and a

written notice of affirmative defense was not required to raise the issue in the trial court.

Alternatively, Crawford asserts that he is entitled to judgment despite failing to raise the statute

of limitations because the trial court, pursuant to the small claims rules, was required to raise the

affirmative defense on his behalf. We disagree.

4 ¶ 16 1. No requirement of written notice of affirmative defense

¶ 17 In the present case, Crawford did not assert the affirmative defense during trial or in a

motion to reconsider before the trial court. Crawford did not file an answer or motion asserting

that two of Mathis’s claims fell outside of the statute of limitations. Crawford did not in any way

raise the issue of the statute of limitations before the trial court, and he failed to raise the issue in

a motion to reconsider. The applicability of the statute of limitations was raised for the first time

on appeal.

¶ 18 Under section 2-613(d) of the Code (735 ILCS 5/2-613(d) (West 2018)), if a defendant

wishes to assert an affirmative defense at trial, he is required to specifically plead it so that the

plaintiff is not taken by surprise. Spagat v. Schak, 130 Ill. App. 3d 130, 134 (1985). If he fails to

do so, he is deemed to have waived the defense and it cannot be considered even if the evidence

suggests the existence of the defense. Id.

¶ 19 It is clear from the record that the trial court was proceeding pursuant to the rules for

small claims (particularly Illinois Supreme Court Rule 286 (eff. Aug. 1, 1992)). Rule 286(b)

states as follows:

“In any small claims case, the court may, on its own motion or on motion of any

party, adjudicate the dispute at an informal hearing. At the informal hearing all

relevant evidence shall be admissible and the court may relax the rules of

procedure and the rules of evidence. The court may call any person present at the

hearing to testify and may conduct or participate in direct and cross-examination

of any witness or party. At the conclusion of the hearing the court shall render

judgment and explain the reasons therefor to all parties.” Ill. S. Ct. R. 286(b) (eff.

Aug. 1, 1992).

5 ¶ 20 Generally, where the small claims rules direct an issue or matter of procedure, such rules

take precedence; they are complete. Wicks v. Bank of Belleville, 56 Ill. App. 3d 222, 227 (1977).

The small claims rule applicable to responsive pleadings is Illinois Supreme Court Rule 286(a),

which simply states:

“[T]he defendant in a small claim must appear at the time and place specified in

the summons and the case shall be tried on the day set for appearance unless

otherwise ordered. If the defendant appears, he need not file an answer unless

ordered to do so by the court; and when no answer is ordered the allegations of

the complaint will be considered denied and any defense may be proved as if it

were specifically pleaded.” Ill. S. Ct. R. 286(a) (eff. Aug. 1, 1992).

¶ 21 In regard to pleadings, the rule merely provides that the defendant need not answer

unless ordered to do so by the court. If no answer is ordered by the court, the allegations of the

complaint are considered to be denied, and the defendant may prove any defense he has

available. Peoria Housing Authority v. Roberson, 74 Ill. App. 3d 326, 328 (1979). Therefore,

Crawford was not required to file a written answer nor was he required to file a written notice of

an affirmative defense in a small claims action unless required by the trial court.

¶ 22 Additionally, this court has liberally construed how an affirmative defense may be raised

during trial in a small claim action. In Nicolai v. Mason, 118 Ill. App. 3d 300 (1983), the plaintiff

claimed that the defendant did not raise the affirmative defense of the statute of limitations at

trial. Id. at 301. However, the report of proceedings indicated that respondent had testified “ ‘that

all this happened such a long time ago and he didn’t understand how he could be sued on it

now.’ ” Id. at 301-02. The court held that the testimony was sufficient to raise the defense of the

statute of limitations, as it sufficiently apprised both the plaintiff and the court that the plaintiff

6 had waited too long to sue. Id. at 302. Since the defendants’ affirmative defense was adequately

presented to the plaintiff and the trial court, and since nothing in the record showed that the

plaintiff was denied the opportunity to present evidence tending to overcome that defense, the

plaintiff’s due process and equal protection rights were not abridged by the trial court. Id.

¶ 23 While the rules governing small claims actions are intended to provide an expeditious,

simplified, and inexpensive procedure for handling small claims, other practice rules, as well as

the provisions of the Code, are applicable to small claims provisions if consistent with the aims

of the small claims rules. Harmon Insurance Agency, Inc. v. Thorson, 226 Ill. App. 3d 1050,

1052 (1992). The purpose of the requirement to file an affirmative defense pursuant to section 2-

613(d) of the Code is to facilitate the decision of cases on their merits, and to eliminate the harsh

consequences stemming from unfair surprise at trial prior to the enactment of the modern rules of

procedure. Id. Because Illinois Supreme Court Rule 286(a) (eff. Aug. 1, 1992) eliminates the

necessity of written pleadings in small claims cases, compliance with the letter of section 2-

613(d) is unnecessary in such cases. Id. However, compliance with the spirit of section 2-613(d)

is consistent with the aims of the small claims rules, and as such, it is applicable to small claims

proceedings. Id. While a party is not required to file a formal answer absent an order to do so by

the trial court, the party must at minimum raise the defense prior to the conclusion of the

respondent’s case in chief so that the plaintiff will have an opportunity for a fair rebuttal. Id.

¶ 24 Requiring a pro se litigant in a small claims action to adhere strictly to technical rules of

pleading runs counter to the spirit and intent of the small claims rules, but the rules cannot be

relaxed to the extent of creating unfairness to the opposing party. A litigant in small claims court

must comply with the spirit of section 2-613(d) of the Code (735 ILCS 5/2-613(d) (West 2018))

and give some notice either before or during the trial that they will be relying on an affirmative

7 defense. While the manner in which the defense is raised may be relaxed in small claims actions,

fundamental fairness requires that the parties must have a reasonable opportunity to respond.

¶ 25 In the instant case, there is nothing in the record indicating that Crawford raised the

applicability of the statute of limitations to two of Mathis’s claims, or even alluded to the time

that had passed since Mathis’s first two dogs were killed. As such, the issue was waived.

¶ 26 2. Trial court not required to raise affirmative defense in small claim

¶ 27 Regarding Crawford’s argument that under Illinois Supreme Court Rule 286(b) (eff. Aug.

1, 1992), it was incumbent upon the trial court to assert the affirmative defense on behalf of

Crawford, we disagree. We first note the lack of authority in Crawford’s brief. Illinois Supreme

Court Rule 341(h) (eff. May 25, 2018) sets out the requirements for appellants’ briefs. The rule

lists the sections of the brief as well as the requirements for each section. With respect to

arguments, the rule requires that the briefs shall contain the contentions of the appellant and the

reasons therefor, with citation of the authorities and the pages of the record relied on. Ill. S. Ct.

R. 341(h)(7) (eff. May 25, 2018). An argument that is developed may be insufficient if it does

not include citations to authority. Vancura v. Katris, 238 Ill. 2d 352, 370 (2010). The Illinois

Supreme Court has stated that even where the brief includes both argument and citation, a party

may nonetheless forfeit review if the cited authority is irrelevant and does not represent a sincere

attempt to comply with the rule. Id.

¶ 28 The only citation included in Crawford’s brief supporting his argument that the trial court

was required to assert the affirmative defense of the statute of limitations on Crawford’s behalf is

the supreme court rule. When analyzing a supreme court rule, this court must ascertain and give

effect to the supreme court's intent. Anderson v. Financial Matters, Inc., 285 Ill. App. 3d 123,

135 (1996). Where the language of the supreme court rule is plain and unambiguous, courts will

8 not read in exceptions, limitations, or other conditions. Id. Thus, considering the plain language

of Rule 286 in accordance with the rules of statutory construction, we cannot find that the rule

requires the trial court to sua sponte raise an affirmative defense on behalf of a respondent.

¶ 29 We further note that a trial judge may not assume the role of an advocate. People v.

Trefonas, 9 Ill. 2d 92, 100 (1956). A trial judge may question witnesses to elicit truth or to

enlighten material issues that seem obscure. Obernauf v. Haberstich, 145 Ill. App. 3d 768, 771

(1986). The scope of such an examination rests largely in the court’s discretion. Id. Witness

examination by the trial judge has been regularly approved in bench trials, where there is a

decreased risk of prejudice and inquiries are appropriate to the judge’s role as a factfinder, and in

small claims actions, where the rules of evidence are applied less strictly in order to further the

goal of providing a simplified and expeditious procedure for litigation of small amounts. Id.

¶ 30 While the trial court wields significant discretion in small claims actions to further its role

as factfinder, the trial court is not an advocate for either party. Illinois Supreme Court Rule 286

(eff. Aug. 1, 1992) allows the trial court in a small claims proceeding to relax the rules of

procedure and the rules of evidence. The court may call witnesses that are present to testify and

may conduct or participate in direct and cross-examination. At the end of the proceeding, the

court is required to render judgment and explain the reasons therefor to all parties. There is

nothing presented to this court in Crawford’s brief or arguments that indicate the trial court did

not comply with the supreme court rule in conducting the proceeding regarding the affirmative

defense.

¶ 31 Crawford did not raise the affirmative defense in any way during the proceedings in the

trial court. In light of Crawford’s failure to refer this court to any applicable cases supporting his

argument, we hold that the trial court did not err in failing to assert the affirmative defense on

9 Crawford’s behalf as that is not what is required by the plain language of the rule. The trial court

must proceed with caution to ensure that the judge does not become an advocate and that both

sides are given a fair opportunity to answer the charges and defenses raised.

¶ 32 B. Insufficient Evidence for Damages

¶ 33 Crawford next argues that the trial court’s award of damages was against the manifest

weight of the evidence where the facts presented at trial regarding the value of the three dogs

included only that they were all German Shepherds and did not include any other evidence from

which the value of the dogs could be determined by the trier of fact. One was a puppy and one

was an “old dog.” Crawford argues that there was no evidence presented as to the amount Mathis

paid for the dogs, their market value, or any sentimental value attached to the dogs.

¶ 34 In the eyes of common law, a pet is an item of personal property, and an action will lie

for their conversion or injury. Anzalone v. Kragness, 356 Ill. App. 3d 365, 369 (2005). While fair

market value is the traditional ceiling for damage to personal property, Illinois courts have held

that certain items of personal property have no market value. Leith v. Frost, 387 Ill. App. 3d 430,

436 (2008). Illinois cases initially provided that damages for loss of a pet were based on the pet’s

fair market value, as evidenced by the pet’s qualities and its commercial value, and for the loss

of its services. Anzalone, 356 Ill. App. 3d at 370.

¶ 35 However, Illinois courts recognize that certain items of personal property, such as

heirlooms, photographs, trophies, and pets have no market value. Jankoski v. Preiser Animal

Hospital, Ltd., 157 Ill. App. 3d 818, 820 (1987). Damages for harm to such items of property are

not restricted to nominal damages. Leith, 387 Ill. App. 3d at 436. Rather, damages must be

ascertained in some rational way from such elements as are attainable. Id.

10 ¶ 36 The proper basis for assessing compensatory damages in such a case is to determine the

item’s actual value to the owner, who is entitled to demonstrate its value to him by such proof as

the circumstances admit. Id. The value to the owner may include some element of sentimental

value in order to avoid limiting the owner to merely nominal damages. Id. In cases where the pet

cannot be replaced, the measure of the “value to the owner” is left largely to the discretion of the

trier of fact. Id. There is no formula for computing the value of the pet to her owner. Id.

¶ 37 In the present case we are asked to determine whether the trial court’s determination that

Mathis’s three dogs were together worth $5000 was against the manifest weight of the evidence.

A conclusion is against the manifest weight of the evidence if the finding is unreasonable,

arbitrary, or not based on the evidence. Bazydlo v. Volant, 164 Ill. 2d 207, 215 (1995). An award

of damages is not against the manifest weight of the evidence if there is an adequate basis in the

record to support the trial court’s determination of damages. Schatz v. Abbott Laboratories, Inc.,

51 Ill. 2d 143, 147 (1972). In proving damages, the burden is on the plaintiff to establish a

reasonable basis for computing damages. Razor v. Hyundai Motor America, 222 Ill. 2d 75, 107

(2006). Damages must be proved with reasonable certainty and cannot be based on conjecture or

speculation. Id. at 106-07. While absolute certainty with regard to damages is not required, the

evidence must nevertheless establish a basis for the assessment of damages with a fair degree of

probability. Prairie Eye Center, Ltd. v. Butler, 329 Ill. App. 3d 293, 302 (2002).

¶ 38 While there is no precise formula for the valuation of a dog as an item of personal

property and the trial court has significant discretion in a determination of value, including an

element of sentimental value, there must be some evidence of record by which the trial court

fashions an award. The evidence must afford some reasonable and proper basis for ascertaining

value. Long v. Arthur Rubloff & Co., 27 Ill. App. 3d 1013, 1026 (1975). At a minimum, it must

11 rise to the dignity of proof and supply such elements or standards for measuring value to enable

the trier of fact to exercise its judgment. Id.

¶ 39 There was some evidence before the trial court as to the dogs’ value to Mathis. The

bystander’s report indicates that there were three German Shepherds. 1 One dog was old and one

was a puppy. Mathis requested damages in the amount of $10,000, indicating to the trial court

that was the value of the dogs to their owner. While the bystander’s report does not indicate that

pure-breed German Shepherds are more valuable than a mixed breed companion dog, courts are

not at liberty to entirely disregard facts of general knowledge of which the courts, themselves,

are cognizant.

¶ 40 However, there was no evidence regarding the cost of German Shepherd dogs or any

breed of dog. There was no evidence as to the purchase price of Mathis’s particular dogs, their

value at the time of their loss, the amount of any veterinary bills associated with their loss,

whether they were specially trained, or if they were working dogs (guide, scent, service animal,

guard, hunting, retrieving, herding, etc.) or companion animals. There was no evidence as to

whether Mathis spent significant time training the dogs or if the animals had significant

sentimental value to him.

¶ 41 We reiterate that there is no formula for determining the value of a pet and the above list

is not an exhaustive list of factors that may relate to a trial court’s determination of valuation. We

recognize that this was a small claims action and thus not subject to the strict rules of evidence

and procedure. See Ill. S. Ct. R. 286(b) (eff. Aug. 1, 1992) (“At the informal hearing all relevant

evidence shall be admissible and the court may relax the rules of procedure and the rules of

1 While the complaint indicated that two of the dogs were German Shepherds and one was half German Shepherd, the bystander’s report submitted by Crawford indicates that all three dogs were German Shepherds. Therefore, we will proceed under that premise. 12 evidence.”). Nevertheless, these relaxed rules did not lessen Mathis’s burden of proof; he still

had to establish a reasonable basis for computing damages.

¶ 42 Here, there were three distinct items of property each with its own value. The trial court

did not delineate the value assessed to each item of property and did not state the basis for

arriving at the award of $5000 for the three dogs. There was insufficient evidence to establish

each of the dogs’ value to Mathis. Further, evidence was admitted at trial that Crawford

compensated Mathis with a pit bull puppy for the loss of one of the dogs. It is unclear to what

extent, if any, the trial court credited Crawford for the compensation with other property.

Therefore, the damage award was against the manifest weight of the evidence, as it was not

supported by the evidence adduced at trial.

¶ 43 Although Mathis failed to provide an adequate basis upon which the trial court could

calculate damages with reasonable certainty, the record is of course sufficient to establish that

Mathis suffered damages as a result of the deaths of his three dogs. Accordingly, it would be

unjust to reverse the award for damages for the destruction of the dogs outright, and we,

therefore, reverse and remand for a new trial solely on the question of the value of the dogs to

Mathis. See Razor, 222 Ill. 2d at 110 (noting that appellate courts have reversed for a new trial

where, among other circumstances, the plaintiff failed to show damages with reasonable

certainty, but the interests of justice required the plaintiff be given an opportunity to show the

proper measure of his or her damages, and remanding for a new trial, where jury awarded

plaintiff $5000 for breach of automobile warranty without sufficient evidence of value as

delivered). The trial court, in pronouncing its judgment, should explain the reasons therefor to

the parties.

13 ¶ 44 III. CONCLUSION

¶ 45 For the foregoing reasons, that portion of the judgment finding Crawford liable is

affirmed. The damage award, however, is reversed and the cause is remanded for a new trial

solely on the issue of damages not inconsistent with the views expressed in this order.

¶ 46 Affirmed in part, reversed in part, and remanded.