Bovee v. Bovee ( 2021 )

NOTICE
2021 IL App (5th) 200193-UNOTICE
Decision filed 06/14/21. The
This order was filed under
text of this decision may be NO. 5-20-0193 Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for
Rehearing or the disposition of
IN THE limited circumstances allowed
under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
TERRY BOVEE, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Jackson County.
)
v. )
) No. 13-L-8
)
CHERYL BOVEE, CLAUDIA BROOM, )
and MICHAEL ROHLING, ) Honorable
) Amanda Byassee Gott,
Defendants-Appellees. ) Judge, presiding.
________________________________________________________________________
JUSTICE WELCH delivered the judgment of the court.
Justices Barberis and Wharton concurred in the judgment.
ORDER
¶1 Held: The trial court’s decision is affirmed where the court did not err in limiting
the damages that the plaintiff, Terry Bovee, could recover after his ex-wife,
Cheryl Bovee, trespassed onto his property, where the court properly
instructed the jury as to the definition of nominal damages and that damages
in a trespass action are presumed; where the court did not err in dismissing
Terry’s claim for intrusion upon seclusion; where Terry failed to meet his
burden of showing that the court was not impartial; and where the court did
not err in granting summary judgment in favor of Michael Rohling, Cheryl’s
then-boyfriend, as there was no evidence that he participated in the trespass.
¶2 This is an appeal from various orders entered by the circuit court of Jackson County
relating to a civil complaint that the plaintiff, Terry Bovee, filed against the defendant,
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Cheryl Bovee, for damages that he suffered as a result of Cheryl trespassing onto his
property and reporting him to the Jackson County Sheriff’s Department for illegal activity
that she discovered during the trespass. For the following reasons, we affirm.
¶3 I. BACKGROUND
¶4 Terry and Cheryl were married and raised two adult children, but at the time of the
incident at issue here, they were divorced. Until their separation, they resided together in
the marital home located on Egret Lake Road in Jackson County. After their separation,
Cheryl moved from the residence, and Terry remained in the home. Subsequent to the
divorce, on June 25, 2011, Cheryl entered the residence without Terry’s permission and
while he was not at home; she used a key that Terry did not know she had. While in the
residence, Cheryl discovered a substantial number of marijuana plants growing in the
basement and took photographs of them. She later contacted the Jackson County Sheriff’s
Department to report what she had seen and emailed the photographs to them. Her unlawful
entry into the home caused no discernable physical damage to the property.
¶5 Subsequently, a search warrant was executed at the residence, and the investigating
officers discovered a hydroponic marijuana growing operation in the basement, which
consisted of specialized lighting and venting, approximately 400 marijuana plants in
various states of growth, and a large amount of dried marijuana. On June 27, 2011, Terry
was charged with a Class 1 felony related to the production of more than 200 cannabis
plants at his residence. Terry pled guilty. On July 5, 2011, a civil forfeiture action was filed
against Terry in the United States District Court for the Southern District of Illinois, which
asserted that his residence was subject to forfeiture as a result of him growing marijuana
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there. Terry failed to contest the forfeiture action, and a default judgment was entered
against him on July 31, 2012. In the order, the federal court ordered the sale of the residence
and set out the distribution of the proceeds from the sale.
¶6 On January 25, 2013, Terry filed his initial three-count complaint against the
defendant, John Doe, 1 and the respondents in discovery, Whitney Bovee (Cheryl and
Terry’s daughter) and Claudia Broom (Terry’s sister), bringing claims of trespass, intrusion
upon seclusion, and public disclosure of private facts. In the complaint, Terry alleged that
the defendant John Doe broke into his home, took pictures of his growing operation, and
then gave those photographs to Cheryl. Terry also asserted that the respondents in
discovery either knew the identity of John Doe or had information that could assist him in
discovering John Doe’s identity. Terry contended that, as a result of the trespass, he
suffered economic losses, including the loss of his residence, mental anguish and emotional
distress, and loss of reputation and integrity in the community. On February 1, 2013,
Claudia filed a motion to dismiss Terry’s initial complaint for failure to state a cause of
action because Terry failed to name an identifiable person as a defendant.
¶7 On February 22, 2013, Terry filed a first amended complaint, which replaced John
Doe as the defendant in the action with Michael Rohling and Cheryl. Michael was Cheryl’s
boyfriend at the time. In the first amended complaint, Terry asserted that one or both of the
defendants broke into his home, took photographs of his growing operation for the purpose
of initiating a criminal prosecution against him, and reported his illegal activity to the
1
Terry initially filed the complaint against John Doe because, at the time that he filed the complaint,
he did not know who had broken into his house.
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Jackson County Sheriff’s Department. The remaining allegations (and the causes of action)
were substantially the same as those in the initial complaint.
¶8 On September 19, 2013, Whitney filed a motion to dismiss herself from the case
because more than six months had elapsed since she was served, and no attempt had been
made to convert her from a respondent in discovery to a defendant. On October 10, 2013,
the trial court entered an order dismissing her from the case. On November 12, 2013,
Claudia filed a motion to dismiss asserting that she should also be dismissed from the case
as no attempt had been made to convert her from a respondent in discovery to a defendant.
On November 15, 2013, the court entered an order by docket entry granting the motion to
dismiss.
¶9 On December 12, 2013, Michael filed a motion for summary judgment on the basis
that there was no evidence to support Terry’s allegations that Michael was involved in the
trespass and subsequent reporting of Terry’s illegal activity. Attached to Michael’s motion
was his January 13, 2012, discovery deposition, at which he testified that he was not present
in Terry’s home during the incident in question, and although he was present when Cheryl
contacted the Jackson County Sheriff’s Department, he had advised her against making the
call.
¶ 10 On January 25, 2016, Cheryl and Michael filed a combined motion for summary
judgment and motion to dismiss pursuant to section 2-619(a)(9) of the Code of Civil
Procedure (735 ILCS 5/2-619(a)(9) (West 2014)). In the motion, they argued that the
intrusion upon seclusion claim, which required that the matter into which the intrusion
occurred be private, and the public disclosure of private facts claim should be dismissed
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for failure to state a cause of action because criminal activity, such as illegally growing
marijuana, is not a protected activity; it was a matter of great public concern and not a
private activity. Also, the motion asserted that Cheryl’s statements regarding Terry’s
criminal activities to the authorities would not be considered a public disclosure because
statements made to law enforcement officials were privileged. With regard to the trespass
claim, the motion admitted that there was no dispute that Cheryl had unlawfully entered
Terry’s residence but contended that there was no evidence that Michael had also entered
the residence that day.
¶ 11 On June 6, 2016, the trial court entered an order on all pending motions and found
as follows. First, the court granted Michael’s motion for summary judgment regarding
count II (trespass), count IV (intrusion upon seclusion), and count VI (public disclosure of
private facts), finding that there were no genuine issues of material facts regarding those
claims. Second, the court granted Cheryl’s motion for summary judgment regarding count
III (intrusion upon seclusion) and count V (public disclosure of private facts) as there were
no genuine issues of material facts as to those claims. Third, the court denied Cheryl’s
motion for summary judgment and motion to dismiss with regard to count I (trespass).
Fourth, the court determined that both Michael’s and Cheryl’s motions to dismiss were
moot because it had already granted summary judgment on the intrusion upon seclusion
and public disclosure of private facts claims. The only remaining claim following the order
was the trespass allegation against Cheryl.
¶ 12 On October 20, 2016, Terry filed a motion for leave to amend his prayer for relief
to include a request for punitive damages on his trespass claim. On January 17, 2017,
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Cheryl filed an objection to Terry’s motion, arguing that a plaintiff could only recover
punitive damages when he suffered actual damages that were proximately caused by a
defendant’s actions, Terry did not suffer from any actual damages from Cheryl’s trespass,
her trespass did not proximately cause the civil forfeiture of his residence and his felony
conviction, and it was not reasonably foreseeable that a trespass would lead to the forfeiture
of a person’s house because of the owner’s illegal activities.
¶ 13 On January 23, 2017, Cheryl filed a motion in limine, arguing, inter alia, that Terry
should be prohibited from claiming: (1) physical damage to his residence because there
was no actual damage to the house during the trespass; (2) emotional distress damages
because he had offered no evidence that he suffered emotional distress as a result of the
trespass, and any emotional distress that he suffered was the result of his illegal conduct;
(3) loss of reputation or integrity because any damages that he suffered were the result of
his illegal activity and not the trespass; (4) economic damages for the disruption to his
business for not being able to conduct business outside the State of Illinois because he
never asked the federal sentencing judge whether he could leave Illinois to conduct
business, and any loss of income was speculative; (5) pain and suffering because there was
no medical or expert testimony to support his claim for pain and suffering; and (6) damages
for the loss of his home because it was his illegal conduct that resulted in the civil forfeiture
of his home.
¶ 14 On July 19, 2017, the trial court entered an order granting Terry’s motion for leave
to amend his prayer for relief to include a request for punitive damages. On December 15,
2017, Terry filed a second amended complaint, which included an allegation that an
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individual had assisted Cheryl at the time of the trespass, and she refused to name that
individual.
¶ 15 On January 16, 2018, Cheryl filed a motion for partial summary judgment,
contending that Terry could not show that any of his claimed damages were proximately
caused by her conduct. In the motion, Cheryl noted that Terry was claiming that he suffered
the following damages: loss of home equity, lost income, felony conviction fine and court
fees, attorney fees, mortgage payments made on the residence after it was forfeited,
property tax payments, moving expenses, loss of phone, loss of vehicle, fees from his
vehicle impoundment, loss of job, repair costs for damages to his home, utility costs for
the home, travel cost to and from the courthouse, and loss of future wages due to his felony
conviction. Cheryl contended that the direct and proximate cause of all the claimed
damages was Terry’s criminal conduct and not her trespass. Cheryl argued that a
reasonable person would not have anticipated that her trespass would cause the forfeiture
of the owner’s residence, the various criminal penalties, and secondary damages arising
from the homeowner’s criminal conviction. Moreover, Cheryl argued that her trespass,
without Terry’s intervening criminal conduct, would not have led to Terry’s claimed
damages.
¶ 16 On May 16, 2018, Terry filed a third amended complaint, contending that as a direct
and proximate consequence of Cheryl’s trespass, her reporting his illegal conduct to the
sheriff’s department, and his felony conviction, he suffered mental anguish, emotional
distress, and loss of reputation in the community; he contended that his sleep patterns had
7
been disturbed, he consumed alcohol to excess, he was moody and irritable, he suffered
from depression, he had anxiety episodes, and he had suicidal ideations.
¶ 17 On June 26, 2018, the trial court entered an order granting Cheryl’s motion for
partial summary judgment, finding that there was no basis for Terry to recover the type of
damages that he sought to recover in his trespass claim. On July 17, 2019, the court entered
another order, clarifying its June 2018 order. In this order, the court found that Cheryl’s
trespass was not the proximate cause of the damages prayed for by Terry. Instead, it found
that Terry’s criminal actions were the cause of his resulting felony conviction, the civil
forfeiture of his residence, and his other claimed damages. The court found that a
reasonable person would not have foreseen that entering Terry’s home without permission
would have resulted in the discovery of Terry’s illegal marijuana growing operation or the
consequences that resulted therefrom. The court noted that no one could say that absent
Cheryl’s trespass, Terry would not have ended up with the same legal consequences against
him; the court noted that Terry could have been caught anytime while his illegal activities
were ongoing. Thus, the court found that Terry could not recover for the compensatory
damages that he prayed for in his complaint. The court also granted Cheryl’s motion
in limine, barring all evidence relating to these damages at trial. However, the court then
found that Terry could proceed with his claim of intentional trespass for nominal damages
and punitive damages.
¶ 18 On December 13, 2019, Terry filed a motion to reconsider, in which he
acknowledged that he could not present evidence of the emotional distress that he suffered
as a result of his conviction, but he argued that he should be able to present evidence of the
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emotional distress that he suffered as a result of the trespass. On December 20, 2019, the
trial court denied Terry’s motion by docket entry.
¶ 19 A jury trial was held on January 13 through 15, 2020, and the following testimony
was presented. Cheryl testified she was married to Terry for 27 years, their divorce was
finalized in the fall of 2009, and he was awarded the marital residence. There was very
little contact between her and Terry after the divorce, but on June 25, 2011, she entered his
residence without his permission. She made sure that he was not at home at this time; she
knew he was at a party because her friend, who was also at the party, let her know that he
was there. She was able to enter the residence with a key that she had made while they
were going through the divorce. While there, she entered the basement and took
photographs of the marijuana plants that he had growing there. When she reported Terry’s
growing operation to the sheriff’s department, she said that she did not know who had taken
the photographs of Terry’s basement; she claimed that the photographs were placed in her
mailbox. However, later she recanted and admitted that she had taken the photographs. She
acknowledged that she contacted the sheriff’s department so they would search his house
and discover the marijuana plants.
¶ 20 Before entering Terry’s house, Cheryl was suspicious that he was doing something
illegal because it appeared that he had money from another source, but she did not know
where he was getting his money. She was also suspicious because there were numerous
occasions where he would not allow their children to go into the basement, which was
unusual because the basement was considered the family room where the children often
hung out. She did not know what she was going to find in the basement, but she did suspect
9
he was growing marijuana. She went to his house that day to see what was going on because
he had threatened her children, and she was worried about the safety of her family. She
explained that Whitney had come to her extremely upset after an incident with Terry where
he threatened that there was going to be a “train crash” that would hurt the entire family,
and there was nothing that Whitney could do to stop it. Cheryl did not talk to anyone about
going to Terry’s house, and she went alone.
¶ 21 Cheryl acknowledged that while on hold with the Jackson County Sheriff’s
Department, she said to Michael, who was in the same room with her, that “[i]f I could put
him [(meaning Terry)] away, I’ll be perfectly happy. This will be our little thing for the
rest of our lives.” She explained that if Terry was not in her life anymore, she would not
have to worry about her family’s safety, and she was hoping that reporting his illegal
activity would put an end to his threats. She further explained that, during their marriage,
Terry was verbally and emotionally abusive to her and had been physically abusive to their
children.
¶ 22 Michael testified that, at the time of the incident, he was Cheryl’s boyfriend, and
they were living together. Initially, Cheryl told him that she found the photographs of
Terry’s basement in their mailbox. He was briefly in the room during her phone
conversation with the sheriff’s department. The first time that he saw the photographs was
when Cheryl had them pulled up on her computer screen.
¶ 23 Whitney testified that Terry and Cheryl were her parents. After their divorce, she
was in contact with her father, and she had concerns about him, which she relayed to her
mother. She explained that if she wanted to go to his house, he required her to make an
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appointment, which she thought was strange. While at the house, he would not let her go
into the basement to retrieve her personal belongings; she thought this was odd because
she always hung out in the basement when she lived there. He had installed a barricade
across the driveway and had also changed the locks to the house. He made negative
comments about Cheryl, such as hoping that she got hit by a bus. One time when Whitney
was at Terry’s house, he was really aggravated and cornered her, saying that anyone who
was involved in ruining his marriage or his relationship with his children would pay and
that there was a “train crash” coming that could not be stopped. She was afraid and crying
and went outside to get away for a bit. When outside, she observed that all of the windows
in the walk-out basement were covered with bedsheets. She then left and went to her
mother’s residence. She told her mother about the incident; she was crying while she
relayed the incident. Her mother was afraid that he would follow through with his threats.
¶ 24 Terry described his marriage to Cheryl as very good and that it was a marriage to
which others aspired. He explained that Cheryl wanted a divorce because she was not
happy. She never indicated that there were issues with emotional abuse between them or
physical abuse between him and the children. He denied being physically abusive toward
the children and denied telling Whitney that he hoped that Cheryl got hit by a bus. Prior to
his arrest, Cheryl did not seek an order of protection against him. After the divorce, he did
not have any contact with Cheryl, and he denied making negative statements about her to
their mutual friends. He admitted that Whitney wanted to go into the basement to get some
of her belongings, but he explained that the basement was “chaotic,” and he got the items
for her because he knew where they were. He admitted having a conversation with Whitney
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where he used the phrase “train wreck” or “train crash,” explaining that he was referring
to the family chaos and how the family was a train wreck. He further explained that they
were bickering back and forth, and he brought up the concept of parental alienation, which
she did not want to hear about. At some point during the encounter, Whitney said that she
was going to punch his girlfriend in the nose. As she was leaving, he gave her a hug and
told her that he loved her. He claimed that during the conversation, Whitney was not
emotional and was not crying.
¶ 25 Terry started growing marijuana in his basement about 15 months before his arrest.
The door to the room where his growing operation was located was locked, and the key
that unlocked his outside doors did not unlock that door. He believed that Cheryl entered
that room by taking the door off the hinges, but he acknowledged that he did not know
whether the door was taken off the hinges when the police came to his house to search for
the marijuana. From the fall of 2009 until the date of the trespass, he had no communication
with Cheryl, and she did not come onto his property. He acknowledged that it was his
choice to grow marijuana in his basement, that he knew it was illegal, and that his conduct
resulted in him being convicted of a Class 1 felony.
¶ 26 After hearing all of the testimony, the jury entered a verdict in favor of Terry and
against Cheryl in the amount of $5 in nominal damages and $20,000 in punitive damages.
On January 30, 2020, the trial court entered a written order setting forth the jury’s findings.
¶ 27 On February 11, 2020, Terry filed a motion for a new trial, arguing that the trial
court erred in preventing him from presenting evidence with regard to the loss of his home,
the disruption of his business, and further costs associated with Cheryl’s trespass and
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subsequent call to the Jackson County Sheriff’s Department; the court erred by not
allowing him to present evidence of the emotional distress that he suffered as a result of
the trespass; the court erred in failing to instruct the jury that he was entitled to
compensatory damages and not just nominal damages; the court erred in excluding
Michael’s testimony that Cheryl sought to cover up the trespass; the court erred in allowing
Cheryl to testify about her marriage with Terry and the alleged abuse that she endured; the
court improperly dismissed his intrusion upon seclusion and public disclosure of private
facts claims; the court erred in dismissing Michael from the case; the court erred in
allowing Whitney to testify; the court erred by not allowing Jacqueline Buck, a psychiatrist,
to testify about Cheryl’s plan to alienate the children from him; the court erred in failing to
instruct the jury on the definition of proximate cause; and the court erred in dismissing
Whitney and Claudia from the case. On June 30, 2020, the trial court denied Terry’s motion
for a new trial. Terry appeals.
¶ 28 II. ANALYSIS
¶ 29 A. Damages
¶ 30 Terry first contends that the trial court erred in limiting his damages to nominal and
punitive damages. Specifically, Terry argues that the court erred in finding that there was
no causal connection between Cheryl’s trespass and his claimed damages with regard to
the loss of his residence, disruption to his business, his emotional distress, and other similar
damages that he suffered after his felony conviction.
¶ 31 The term “proximate cause” includes two distinct requirements: cause in fact and
legal cause. City of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351, 395 (2004).
13
Generally, proximate cause is a question of fact; however, the lack of proximate cause may
be determined by the trial court as a matter of law where the facts alleged do not sufficiently
demonstrate both cause in fact and legal cause. Id. at 395-96.
¶ 32 1. Cause in Fact
¶ 33 To establish cause in fact, plaintiff must allege sufficient facts to show there is a
reasonable certainty that defendant’s acts caused the injury. Id. at 395. In making this
determination, courts use either the “but for” test or the “substantial factor” test. Freeman
v. City of Chicago, 2017 IL App (1st) 153644, ¶ 39. Under the “but for” test, the question
is whether the injury would have occurred absent defendant’s conduct, while the
“substantial factor” test asks whether defendant’s conduct was a substantial factor in
bringing about the injury. Id.¶ 34 Here, Terry contends that Cheryl’s trespass was the cause in fact of his claimed
damages, which included the forfeiture of his residence, the disruption to his business, and
other secondary damages after he was convicted of the felony. We disagree. The
compensatory damages identified by Terry were solely related to his voluntary decision to
violate the law by setting up a marijuana growing operation in his basement. The civil
forfeiture action was brought against him as a result of him pleading guilty to a Class 1
felony related to the production of more than 200 cannabis plants at his residence. Terry
failed to contest that forfeiture action, and a default judgment was entered against him,
resulting in the sale of his residence. If Terry had not chosen to operate an illegal growing
operation inside his residence, he would not have suffered those claimed damages,
regardless of Cheryl’s trespass. Thus, those damages were not imposed upon him because
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of Cheryl’s trespass; they were the consequences of him committing a Class 1 felony,
which triggered a civil forfeiture action. However, even assuming arguendo that Cheryl’s
actions were the cause in fact of the claimed damages, her trespass was not the legal cause
of them.
¶ 35 2. Legal Cause
¶ 36 Legal cause requires proof that the injury was a reasonably foreseeable result of
defendant’s conduct. Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 456 (1992). “The
proper inquiry regarding legal cause involves an assessment of foreseeability, in which we
ask whether the injury is of a type that a reasonable person would see as a likely result of
his conduct.” City of Chicago, 213 Ill. 2d at 395.
¶ 37 When determining whether a plaintiff’s injuries are proximately caused by
defendant’s conduct, Illinois courts have drawn a distinction between a condition and a
cause. First Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 257 (1999). If defendant’s
conduct does nothing more than furnish a condition by which the injury is made possible,
and that condition causes an injury by a subsequent, independent act of a third person, the
creation of the condition is not the proximate cause of the injury. Id. Rather, proximate
cause exists where the intervening act was reasonably foreseeable to the party creating the
condition as a natural and probable result of their own conduct. Id.¶ 38 In Galman, a pedestrian died while attempting to cross the street mid-block in front
of an illegally parked tanker truck. Id. at 254. The pedestrian’s estate sued the driver who
hit the pedestrian as well as the driver of the tanker truck and the trucking company for
negligence. Id. at 255. The tank truck driver and the trucking company argued that the
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illegally parked truck was not the proximate cause of the pedestrian’s injuries, noting that
there was a distinction between a condition and a cause. Id. at 257. Our supreme court
concluded that the illegally parked tanker truck was a cause in fact of the pedestrian’s fatal
injuries in that had the truck driver not parked his truck illegally on the street, the
pedestrian’s injuries almost certainly would not have occurred. Id. at 260. The court
acknowledged that the pedestrian still may have chosen to cross the street at mid-block
instead of using the crosswalk, which was in clear violation of the law, but it concluded
that she would have had an unobstructed view of the roadway and presumably would have
timed her crossing to avoid a collision with oncoming traffic. Id.¶ 39 However, the supreme court then determined that the illegally parked tanker truck
was not the legal cause of the pedestrian’s injuries. Id. In making the decision, the court
noted that the question was whether it was reasonably foreseeable that violating a “no
parking” sign at mid-block would likely result in a pedestrian ignoring a marked crosswalk
at the corner, walking to mid-block, and attempting to cross a designated truck route blindly
and in clear violation of the law. Id. at 261. Finding that it was not reasonably foreseeable,
the court noted that the pedestrian’s decision to jaywalk was entirely of her own making
and that the tank truck driver neither caused her to make that decision nor reasonably could
have anticipated that decision as a likely consequence of his conduct. Id. Thus, the court
found the illegally parked truck was not the legal cause of the pedestrian’s injuries. Id.¶ 40 Here, the relevant inquiry is whether a reasonable person would have anticipated
that her illegal entry into Terry’s residence would have caused the forfeiture of his home,
disruption to his business, and the secondary damages arising from the imposition of
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criminal sanctions. This inquiry looks at what a reasonable person would foresee as the
result of her conduct, not at what this specific defendant knew or should have known. City
of Chicago, 213 Ill. 2d at 396. Cheryl’s trespass and subsequent report to the sheriff’s
department furnished the condition making Terry’s punishment possible, but it did not
cause the imposition of the sanctions about which Terry complains. A reasonable person
would not anticipate that trespassing into someone’s home would result in that person
losing their home, losing income, and the other claimed damages imposed upon Terry for
his criminal conduct. Terry’s decision to illegally grow marijuana in his basement was
entirely of his own making, and Cheryl neither caused him to make that decision nor
reasonably could have anticipated, as a natural and probable result of her trespass, that
Terry would lose his residence and suffer disruption to his business as well as his other
claimed damages. Thus, we find that because Cheryl’s trespass does nothing more than
furnish a condition by which Terry’s injuries were made possible, her trespass was not the
proximate cause of his injuries. See Thompson v. County of Cook, 154 Ill. 2d 374, 383
(1993) (“If a defendant’s negligence does nothing more than furnish a condition by which
injury is made possible, that negligence is not the proximate cause of injury.”).
¶ 41 Moreover, the cases cited by Terry that allow a plaintiff who was engaging in
criminal activity to sue in tort and recover damages are not applicable as we are not saying
that Terry is prohibited from recovering his claimed damages solely because he engaged
in criminal activity; instead, we are saying that he cannot establish that Cheryl’s trespass
was the proximate cause of his claimed injuries, so those damages are not recoverable.
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¶ 42 3. Emotional Distress
¶ 43 Terry next contends that the trial court erred by not allowing him to present evidence
of his emotional distress damages. 2 In making this argument, he acknowledges that
emotional distress damages as a result of his arrest, conviction, and the resulting fine are
not recoverable but contends that the emotional distress damages that he suffered as a result
of Cheryl’s trespass are recoverable.
¶ 44 A trial court’s decision to grant a motion for partial summary judgment is reviewed
de novo. Sinclair Oil Corp. v. Allianz Underwriters Insurance Co., 2015 IL App (5th)
140069, ¶ 34. Generally, we review a court’s decision on a motion in limine for an abuse
of discretion. Schandelmeier-Bartels v. Chicago Park District, 2015 IL App (1st) 133356,
¶ 25. However, where the only issue before the reviewing court involves a question of law,
the trial court’s decision is reviewed de novo. Id.¶ 45 Here, the relevant question is whether the trial court erred in finding that Terry could
not recover the emotional distress damages that he claimed in his third amended complaint.
If a trespass causes mental distress, the trespasser is liable in damages for the mental
distress and any resulting illness or physical harm. Gavcus v. Potts, 808 F.2d 596, 598 (7th
Cir. 1986). In Terry’s complaint, he alleged that as a direct and proximate cause of Cheryl
trespassing into his home, reporting him to the sheriff’s department, and the civil forfeiture
of his residence, he suffered emotional distress in that his sleep patterns were disturbed, he
2
As noted above, the trial court granted partial summary judgment in favor of Cheryl, finding that
there was no genuine issue of material fact as to whether Terry could recover these damages. The court also
granted her motion in limine, barring evidence related to these damages.
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consumed alcohol to excess, he was moody and irritable, he suffered from depression, he
had anxiety episodes, and he had suicidal ideations. In his February 10, 2015, deposition,
he testified that he had not been diagnosed by a physician with any ailment since the
incident, he had not reported any symptoms of anxiety or depression to his physician since
before the incident, and he had no medical or mental health treatment for any symptoms
that he experienced since the incident.
¶ 46 Neither in his appellate briefs, nor in his pleadings filed below, has Terry identified
the emotional distress damages that he suffered as a result of the trespass alone; the
allegations asserted that he suffered emotional distress from the trespass, his criminal
conviction, and the subsequent consequences of the conviction, such as the forfeiture of
his house. Although he attempted to testify about his fear of future break-ins (the trial court
did not allow this testimony because of the motion in limine), he made no offer of proof
about this fear or any other emotional distress that he experienced as a result of the trespass.
Thus, we cannot determine what emotional distress damages he is claiming specific to the
trespass. Further, the court found that Terry was only allowed to recover nominal and
punitive damages because his criminal actions were the cause of his other claimed
damages, which included his emotional distress damages. Thus, the court essentially
concluded that Terry’s claimed emotional distress damages were not the result of the
trespass alone. Because damages in tort cannot be uncertain or speculative (see Chicago
Title & Trust Co. v. Walsh, 34 Ill. App. 3d 458, 471 (1975)), and there is no indication in
the record that Terry suffered emotional distress damages solely as a result of the trespass,
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we cannot say that the court erred in barring him from presenting evidence of his emotional
distress damages.
¶ 47 B. Jury Instruction
¶ 48 Terry next contends that the trial court improperly instructed the jury that it should
award him a trivial sum in compensatory damages for Cheryl’s trespass.
¶ 49 A reviewing court generally reviews jury instructions for an abuse of discretion.
People v. Anderson, 2012 IL App (1st) 103288, ¶ 33. The decision whether to give the
instruction is within the sound discretion of the trial court, but there must be evidence in
the record to justify giving a particular instruction. Id. However, when the question is
whether the applicable law was accurately explained to the jury, the standard of review is
de novo. Id. ¶ 34.
¶ 50 A plaintiff who has proved trespass need not prove actual damages to
recover nominal damages; a trespass occurs whenever a property interest is invaded.
Chicago Title Land Trust Co. v. JS II, LLC, 2012 IL App (1st) 063420, ¶ 77. Every trespass
entitles plaintiff to at least nominal damages. Johnson v. Tipton, 103 Ill. App. 3d 291, 296-
97 (1982).
¶ 51 In this case, the jury was instructed that:
“If [Cheryl] trespassed onto plaintiff’s property, plaintiff may be entitled to
nominal damages from defendant. Nominal damages are designed as a trivial sum
awarded as recognition that a legal injury was sustained though slight. Nominal
damages will be awarded for an intentional tort to vindicate the plaintiff’s claim
where no recoverable loss to be established.
20
If you find that Cheryl Bovee intentionally trespassed on to Terry Bovee’s
property, then damages in favor of Terry Bovee are presumed to have occurred.” 3
Terry contends that there were two errors with these instructions: the trial court defined
“nominal damages” as trivial, which prevented the jury from awarding him something
greater than trivial; and the court did not instruct the jury that damages are to be presumed
in a trespass action. First, the definition of “nominal damages” in the instruction was
provided by Cheryl’s counsel and was obtained from Barron’s Law Dictionary. In
determining whether the definition of “nominal damages” should be given to the jury, the
court concluded that it was a legal term that needed to be defined for them. We find that
the court’s decision to provide the definition to the jury was not an abuse of discretion.
¶ 52 Black’s Law Dictionary defines nominal damages as: “A trifling sum awarded
when a legal injury is suffered but there is no substantial loss or injury to be compensated.”
Black’s Law Dictionary (11th ed. 2019). Also, Black’s cites Charles T.
McCormick’s Handbook on the Law of Damages § 20, at 85 (1935): “Nominal damages
are damages awarded for the infraction of a legal right, where the extent of the loss is not
shown, or where the right is one not dependent upon loss or damage.” The definition of
“nominal damages” given to the jury here is consistent with the definition from Black’s
Law Dictionary. Second, the trial court did instruct the jury that damages are to be
presumed in a trespass action, which was a correct statement of law. Thus, the foregoing
instructions were proper.
3
This jury instruction was read to the jury after the nominal damages’ instruction, but it is not
located in the common law record after the nominal damages’ instruction; instead, it is the last jury
instruction there.
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¶ 53 C. Dismissal of the Intrusion Upon Seclusion Claim
¶ 54 Terry also argues that the trial court erred in granting summary judgment in favor
of Cheryl and Michael on his intrusion upon seclusion claim.
¶ 55 Summary judgment should be granted when the pleadings, depositions, admissions
on file, and affidavits, if any, establish there is no genuine issue of material fact and that
the moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2-1005(c) (West
2014). When determining whether a genuine issue of material fact exists, the trial court
must construe all pleadings and attachments strictly against the movant and liberally in
favor of the nonmovant. Hilgart v. 210 Mittel Drive Partnership, 2012 IL App (2d)
110943, ¶ 19. We review de novo an order granting summary judgment. Id.¶ 56 Our supreme court in Lawlor v. North American Corp. of Illinois, formally
recognized a cause of action in Illinois for the tort of intrusion upon seclusion. Lawlor v.
North American Corp. of Illinois, 2012 IL 112530, ¶ 35. To state a cause of action
for intrusion upon seclusion, a plaintiff must allege: (1) an unauthorized intrusion into
seclusion, (2) the intrusion would be highly offensive to a reasonable person, (3) the
matter intruded upon was private, and (4) the intrusion caused plaintiff’s anguish and
suffering. Cooney v. Chicago Public Schools, 407 Ill. App. 3d 358, 366 (2010). The third
element of the tort, requiring allegations of private facts, is the predicate for the other
elements, and if this element is not proven, this court need not reach the other elements.
Busse v. Motorola, Inc., 351 Ill. App. 3d 67, 72 (2004).
¶ 57 Our court provides guidance on what constitutes a “private fact” in Davis v. Temple,
284 Ill. App. 3d 983 (1996). There, plaintiff brought a claim against defendant police
22
officer for intrusion upon seclusion because, in his capacity as a police officer, he contacted
plaintiff via telephone and went to her place of employment to question her about an
incident he was investigating involving her husband. Id. at 987-88. Our court found that
the officer’s actions did not constitute an unreasonable intrusion into the seclusion of
another because any alleged offensive conduct occurred during the course of a criminal
investigation concerning plaintiff’s husband. Id. at 994. The court concluded that a criminal
investigation was a public matter, not a private matter, and did not meet the third element.
Id. The facts that the officer called plaintiff and demanded that she appear at the police
station and then appeared at her place of employment did not constitute an unreasonable
intrusion into the seclusion of another, due to the public nature of the investigation of a
crime allegedly committed. Id. at 995.
¶ 58 Here, in his complaint, Terry argued that both Cheryl’s and Michael’s intrusions
into his home and his private affairs were highly offensive and were, thus, an intrusion
upon seclusion. Although neither defendant was a law officer conducting an investigation
like in Davis, Cheryl’s discovery of Terry’s criminal conduct of maintaining a marijuana
growing operation in his basement is not merely a private matter. In making this decision,
we find Beresky v. Teschner, 64 Ill. App. 3d 848 (1978), instructive (although it did not
involve the same privacy tort at issue here). In Beresky, the appellate court found that there
was no public disclosure of private facts when a publisher of a newspaper printed an article
about plaintiffs’ teenage son’s death from a drug overdose and stated that he had been a
major seller and user of heroin. Id. at 856. The court found that the subject of drug use was
a matter of great controversy and of great public concern. Id. Similarly, we conclude that
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Cheryl’s discovery and subsequent reporting of Terry’s illegal growing operation was not
a private matter for the purposes of the tort of intrusion upon seclusion. Thus, we affirm
the trial court’s decision to grant partial summary judgment in favor of Cheryl and Michael
on this issue. See Bourgonje v. Machev, 362 Ill. App. 3d 984, 994 (2005) (summary
judgment is proper where plaintiff will be unable to prove an element of his cause of
action).
¶ 59 D. Judicial Bias
¶ 60 Terry next contends that he was denied a fair trial because the trial court was biased
against him. In support of this argument, he points to the following evidentiary rulings the
court made against him: (1) the court permitted Whitney and Cheryl to testify about the
incident at Terry’s residence where he used the phrase “train wreck”; (2) his attorney was
not permitted to use the word “vigilante” during voir dire; (3) during opening statements,
his counsel was not permitted to tell the jury that Cheryl had no objections to marijuana
because she had friends who smoked marijuana; (4) during opening statements, Cheryl’s
counsel was permitted to tell the jury that the court had determined that Terry was entitled
to “zero” monetary damages; (5) Cheryl was permitted to testify about incidents that
occurred during her marriage with Terry that demonstrated that he was a “dangerous and
unstable person”; (6) the court put severe limitations on Terry’s ability to rebut this
testimony; (7) the court refused to allow Terry to present testimony about how he had been
a victim of parental alienation; (8) the court refused to allow testimony from Detective
Mike Ryan that Terry was not under investigation for his growing operation prior to Cheryl
reporting him; and (9) the court did not allow Michael to testify about Cheryl’s efforts to
24
conceal the trespass. Based on these evidentiary rulings, Terry claims that the court “put
[its] finger on the scales of justice in favor of Cheryl.”
¶ 61 A trial judge is presumed to be impartial, and the party asserting bias bears the
burden of overcoming that presumption. Eychaner v. Gross, 202 Ill. 2d 228, 280 (2002). A
judge’s previous rulings alone almost never constitute a valid basis for a claim of judicial
bias. Id. “Allegedly erroneous findings and rulings by the trial court are insufficient reasons
to believe that the court has a personal bias for or against a litigant.” Id. However, judicial
remarks during the course of trial that reveal a high degree of favoritism or antagonism as
to make fair judgment impossible supports a bias or partiality challenge. Id. at 281. The
party claiming judicial bias must present evidence of prejudicial trial conduct and evidence
of the judge’s personal bias. Id. at 280.
¶ 62 Here, Terry has failed to meet his burden of showing that the trial judge was not
impartial. Although the trial judge ruled adversely to him on a number of evidentiary
issues, Terry has not shown that these evidentiary rulings reveal a “high degree of
favoritism or antagonism as to make a fair judgment impossible.” Even if Terry’s
allegations that the evidentiary rulings were erroneous is true, the mere fact that the
evidentiary rulings were incorrect, alone, would be insufficient to demonstrate bias or
prejudice warranting a new trial. As previously noted, adverse rulings alone rarely
demonstrate a bias or prejudice on the part of the ruling judge.
¶ 63 Moreover, as to the specific evidentiary rulings that Terry challenges, we find no
abuse of discretion. The determination of the admissibility of evidence rests primarily in
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the discretion of the trial court, and its decisions will be reversed only upon a clear abuse
of that discretion. Johnson v. Tipton, 103 Ill. App. 3d 291, 297 (1982).
¶ 64 Concerning the first evidentiary ruling that Terry challenges, permitting Whitney
and Cheryl to testify about Whitney’s encounter with Terry at his residence, Terry filed a
motion in limine objecting to this line of testimony as irrelevant; he argued that trespassing
onto his property was not a remedy for Cheryl feeling threatened by him. On July 17, 2019,
the trial court granted Terry’s motion in limine in part but reserved its ruling on whether
Whitney could testify. The court found that this issue was better served to be ruled upon at
trial because Whitney would only testify if certain facts were presented at trial by Terry,
and it was not yet known if her testimony was relevant or necessary. In opening statements,
Cheryl’s counsel stated that Cheryl and Whitney’s testimony about that encounter showed
her motive for the trespass (he contended that she trespassed onto Terry’s property because
she felt threatened by Terry’s comments). Counsel indicated that this was relevant to the
punitive damages issue. At trial, Terry’s counsel elicited testimony from Cheryl about
Whitney’s encounter with Terry at his residence. Whitney also testified about this incident,
and the only objection made by Terry’s counsel to this line of questioning was lack of
foundation. In response to the objection, the court initially instructed Cheryl’s counsel to
lay the foundation and then subsequently instructed counsel to ask when the incident
occurred, which counsel did. We find that the court did not abuse its discretion in
permitting Cheryl and Whitney to testify about this encounter to establish the reasoning
behind her decision to trespass, which would be relevant to the punitive damages issue.
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¶ 65 The next adverse evidentiary ruling, not allowing Terry’s counsel to use the word
“vigilante” during voir dire, was also not an abuse of discretion. The trial court prohibited
Terry’s counsel from using the word “vigilante” as it was prejudicial due to its connotation.
The court allowed counsel to question the potential jurors about the circumstances of the
case, their thoughts about it, and what they might do under the same circumstances but
thought it prejudicial to use the word “vigilante” because there was no point in using such
an inflammatory word. We find that this ruling was not an abuse of the court’s discretion.
¶ 66 The third evidentiary ruling, not allowing Terry’s counsel to tell the jury that Cheryl
had no objections to marijuana, was also not an abuse of the trial court’s discretion. The
court found that Cheryl’s feelings about marijuana use were irrelevant; Terry’s marijuana
growing operation was illegal, and Cheryl was reporting a crime. We find that the court
did not abuse its discretion by refusing to allow this line of questioning as any feelings that
she had about marijuana use were irrelevant.
¶ 67 The fourth evidentiary ruling, allowing Cheryl’s counsel to tell the jury that the trial
court had determined that Terry was entitled to “zero” monetary damages, was also not an
abuse of discretion. In opening statements, Cheryl’s counsel stated that the relevant
question was the amount of damages that Terry suffered when Cheryl entered his residence
and that the answer to that question was that she did “zero” damage. Terry’s counsel
objected to that statement on the basis that Cheryl’s counsel was representing that the court
made a finding that compensatory damages were “zero.” In response, Cheryl’s counsel
clarified that he said that the court made a finding that there were no damages arising out
of Cheryl’s unlawful entry into Terry’s home. As it was apparent that there was no damage
27
to the property arising out of Cheryl’s trespass, we find that the court’s decision to overrule
this objection was not an abuse of discretion.
¶ 68 As for the fifth and sixth evidentiary rulings, permitting Cheryl to testify about past
incidents that occurred during her marriage with Terry and limiting rebuttal, the trial court
did not abuse its discretion. During Cheryl’s testimony, the court allowed her to testify
about incidents that occurred during the marriage and threats and negative comments that
Terry made after their divorce. The court found that this testimony was relevant to
substantiate Cheryl’s claim that she had a reasonable fear of Terry. The court also limited
the testimony to relevant time periods, and when time periods were unclear, instructed
counsel to clarify when each incident occurred. Terry was allowed to rebut the allegations
about the abuse and/or threats by testifying about his perspective of his marriage to Cheryl,
including the fact that he believed they had an amicable marriage; the specific incidents
involving the children; his interactions with their children; that he did not make any
derogatory statements about Cheryl after she filed for divorce; and that he never made
negative statements to their mutual friends about Cheryl so that it would be relayed to her.
Although he was not allowed to present testimony from a third party about an incident that
occurred with his neighbors, the court permitted him to testify about the incident to present
his side of the story because Cheryl had testified about it first. After a careful review of the
record, we find that the court did not abuse its discretion in permitting this testimony and
by not allowing third parties to testify about the specific incidents.
¶ 69 The seventh evidentiary ruling, refusing to allow Terry to present expert testimony
about how he had been a victim of parental alienation, was also not an abuse of discretion.
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The trial court also did not allow Terry’s counsel to elicit testimony about how Cheryl
talked badly about Terry to the children. The court found that this was not relevant to the
issues of whether Cheryl had trespassed and, if so, the damages that should be awarded to
Terry as a result of the trespass. We find that this ruling was not an abuse of discretion.
¶ 70 The eighth evidentiary ruling, refusing to allow testimony from Detective Mike
Ryan that Terry was not under investigation for his growing operation, was also not an
abuse of discretion. The issue of whether Terry was under investigation for his illegal
growing operation at the time of Cheryl’s trespass was irrelevant to the issues of whether
Cheryl had trespassed and the amount, if any, of damages that should be awarded to Terry.
¶ 71 The last evidentiary ruling, refusing to allow Michael to testify about Cheryl’s
efforts to conceal the trespass, was not an abuse of discretion. During trial, Terry’s counsel
attempted to question Michael about his conversations with Cheryl regarding the trespass
and her reporting Terry for his illegal activity. Terry’s counsel noted that, if Michael had
been permitted to testify about this matter, he would have stated that Cheryl thought she
could report Terry anonymously, but he believed it would be a problem; he told her that he
did not think she could do it anonymously, so he said that she should not do it at all. The
trial court found that this line of questioning was irrelevant because Cheryl did in fact call
law enforcement and report Terry’s conduct. This ruling was not an abuse of the court’s
discretion.
¶ 72 Accordingly, we find that the trial court’s evidentiary rulings did not reveal a high
degree of favoritism toward Cheryl or antagonism toward Terry. We also find that the court
29
did not abuse its discretion in making those rulings. Thus, we conclude that Terry has failed
to meet his burden of showing that the trial judge was not impartial.
¶ 73 E. Dismissal of Michael
¶ 74 Lastly, Terry contends that the trial court erred in dismissing Michael from the cause
of action. Pointing to the following facts, he argues that there was sufficient evidence of a
civil conspiracy between Cheryl and Michael: Michael initially testified in his discovery
deposition that Cheryl discovered the photographs in the mailbox; he was in the room when
Cheryl reported Terry’s growing operation to the sheriff’s department; the door to the room
in the basement where the growing operation was located was locked, and the key that
Cheryl had would not work on that door; Terry had a photograph that showed the door to
that room had been taken off its hinges; and Cheryl said she was inside the home for 15
minutes, but she could not have entered the house, searched the house, and took the locked
door off its hinges by herself within that amount of time. Thus, Terry argues that Cheryl
must have had an accomplice and that accomplice had to be Michael.
¶ 75 In his December 12, 2013, motion for summary judgment, Michael contended that
the facts were undisputed that he had no involvement in Cheryl entering Terry’s residence
and taking photographs of Terry’s marijuana growing operation and that it was apparent
from the discovery that was conducted that he did not conspire with anyone to unlawfully
enter Terry’s residence. Attached to his motion was his discovery deposition, at which he
testified that he was not present in Terry’s home during the incident in question, and
although he was present when Cheryl contacted the Jackson County Sheriff’s Department,
he had advised her against making the call. Cheryl’s testimony at her discovery deposition
30
corroborated Michael’s testimony that he was not involved; she testified that she had not
told anyone about her intentions to enter Terry’s residence that night, including Michael,
and that he did not assist or aid her in entering Terry’s home that night. Moreover, at
Terry’s discovery deposition, when asked what evidence he had of Michael’s participation
in the trespass, Terry answered that Michael was heard in the background of the audiotape
of Cheryl’s phone call to the sheriff’s department and that it would “seem extremely
unlikely that he did not participate in the trespass.” He then acknowledged that they did
not really know who assisted Cheryl and that Michael was a “suspect.”
¶ 76 After carefully reviewing the record, we find that the trial court did not err in finding
that there was no genuine issue of material fact regarding Michael’s participation in the
trespass. Thus, we affirm the court’s order granting summary judgment in favor of Michael.
¶ 77 III. CONCLUSION
¶ 78 For the foregoing reasons, we affirm the judgment of the circuit court of Jackson
County.
¶ 79 Affirmed.
31