Opinion
5-23-1100
06-27-2024
ELLIANDER A. ELDRIDGE, Petitioner-Appellant, v. STANISLAUS D. KOCHANSKI, Respondent-Appellee.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Madison County. No. 23-OP-1327 Honorable Maureen D. Schuette, Judge, presiding.
JUSTICE MOORE delivered the judgment of the court. Justices Boie and McHaney concurred in the judgment.
ORDER
MOORE JUSTICE
¶ 1 Held: The limited record on appeal does not support any of the petitioner's claims of error. Because the petitioner did not satisfy his burden as the appellant, to provide this court with a record sufficient to support his claims, we must reject them. In addition, to the extent it is possible to review the petitioner's claims, we find no error or abuse of the trial court's discretion.
¶ 2 This appeal involves a long-running dispute between neighbors. The petitioner, Elliander A. Eldridge, eventually filed a petition for an order of protection against his neighbor, the respondent, Stanislaus D. Kochanski. The trial court denied the petition after a hearing. The petitioner, acting pro se, appeals that ruling, arguing that the court erred in (1) refusing to admit into evidence court documents, photographs, and video recordings; (2) limiting testimony to a specified time period and refusing to allow testimony concerning incidents the court found to be irrelevant; (3) refusing to allow the petitioner to read a prepared statement or refer to notes concerning the times and dates of alleged incidents during his testimony; (4) refusing to allow the petitioner's partner to assist him during his testimony because of an unspecified disability; (5) excluding the petitioner's partner's testimony describing events she saw on their security camera; and (6) permitting the respondent's attorney to serve motions and pleadings on the petitioner through an email address belonging to a third party. We affirm.
¶ 3 I. BACKGROUND
¶ 4 On September 18, 2023, the petitioner filed a pro se petition seeking an order of protection against the respondent. He requested both an emergency order and a plenary order of protection.
¶ 5 The petitioner's allegations concerning the respondent's conduct reflect a long-running dispute between neighbors, much of it concerning the placement of the petitioner's waste bins.The petitioner alleged that the respondent (1) threw waste bins; (2) interfered with waste collection; (3) prevented the petitioner and his partner, Melissa Scharfinski, from doing yard work "via confrontation"; (4) made "harassing complaints" about the petitioner's yard to the City of Alton; (5) pointed a leaf blower at the petitioner's face; (6) stole limestone blocks that the petitioner used to position his waste bins; (7) brought off-leash dogs onto the petitioner's property; (8) allowed trees to fall on the petitioner's property due to neglect; (9) deposited leaves in the petitioner's yard, which killed plants in the petitioner's garden; (10) burned his yard waste at night, leading to smoke in the petitioner's yard and house; (11) interfered with contractors working on the petitioner's property; and (12) "many[,] many other types of events."
Although it is not entirely clear from the allegations of the complaint, this dispute appears to stem from a disagreement as to the location of the property line. The petitioner alleged that the respondent justified his actions involving the petitioner's waste bins by claiming they had been placed in front of the respondent's property, which the petitioner denies. In his request for relief, the petitioner asked the court to order the respondent to move a fence to his own property.
¶ 6 Under the heading of "Why a Restraining Order Should be Granted," the petitioner described specific incidents of some of the respondent's alleged conduct. He asserted that on September 10, 2021, the respondent "illegally drove" his power mower on the street and sidewalk, which caused damage to Scharfinski's vehicle. The petitioner further alleged that on July 18, 2023, there was a verbal confrontation between the petitioner and the respondent and the respondent "responded by throwing a waste bin in the direction of' the petitioner. He alleged that similar incidents had occurred on multiple occasions, although he did not describe specific incidents or specify when they occurred. The petitioner described a long-running feud with the respondent over the placement of his waste bins, noting that the respondent claimed to have thrown the petitioner's bins because he erroneously believed they were in front of his property.
¶ 7 Under the same heading, the petitioner expanded on his allegations concerning the respondent's dogs. He acknowledged that the dogs had never exhibited aggressive behavior toward himself or Scharfinski. However, he asserted that the dogs could become aggressive if they perceived the petitioner and Scharfinski as a threat to their owner (the respondent) under circumstances where he "came at [them] aggressively as he's done before." The petitioner opined that the respondent brought the dogs onto his property as "a form of intimidation." Finally, the petitioner noted that the respondent had previously requested a no-contact order against the petitioner, which the court had denied.
¶ 8 Attached to the petition was a statement written by Scharfinski. In it, she confirmed that on September 10, 2021, the respondent drove his mower on the street, causing damage to her vehicle. She explained that the respondent's mower kicked up dirt, rocks, and debris, some of which got into the vehicle. She further alleged that on March 4, 2023, the respondent got involved in a verbal dispute between Scharfinski and another neighbor, who had put a shovel-full of yard waste into one of her trash bins. She stated that the respondent took the side of the other neighbor and berated her. Finally, she stated that on September 9, 2023, "a young man manipulated [the petitioner and Scharfinski's] yard waste bin that was due for pickup that day." She noted that this resulted in the bin not being picked up. We note that, according to the petitioner, he had seen the young man visiting the respondent's house and he therefore assumed the young man was a relative of the respondent.
¶ 9 In the petitioner's request for relief, he asked the court to enter an order prohibiting the respondent from stalking or contacting him. He further requested that the respondent be ordered to stay at least 15 feet away from the petitioner and be prohibited from entering onto the petitioner's property. Scharfinski was listed as an additional protected person. Finally, under the heading "other injunctive relief," the petitioner asked that the court prohibit the respondent from touching his waste bins, depositing yard waste on the petitioner's property or in public space, communicating with contractors or guests present on the petitioner's property, riding his lawn mower on the street or sidewalk, and allowing his dogs to be off-leash on the petitioner's property or in public space. Further, the petitioner asked the court to order the respondent to move his fence so that it would be situated "fully on his own property."
¶ 10 On September 18, 2023, the same day the petition was filed, the court entered an order finding that the allegations were insufficient for an ex parte emergency order. The court directed the clerk of the court to issue a summons and set the matter for a hearing.
¶ 11 On September 25, 2023, the respondent filed his answer, objections, and motion to dismiss the petition. He asserted that the petition contained 26 pages of "conclusory allegations" that were not relevant to a cause of action for stalking as defined by the statute. See 740 ILCS 21/10 (West 2022). He further stated that the petitioner did not allege "specific facts with specific dates and locations." The respondent argued that for these reasons, the petition was insufficient as a matter of law, and he requested dismissal of the petition for failure to state a claim. See 735 ILCS 5/2615 (West 2022). Alternatively, the respondent denied all allegations of the petition.
¶ 12 On October 5, 2023, the matter came for a hearing. The record contains neither a transcript nor a bystander's report of the hearing. However, the court noted in a docket entry that witnesses testified at the hearing. On the same date, the court entered an order expressly finding that the petitioner failed to meet his burden of proof. The court therefore denied the request for an order of protection.
¶ 13 The petitioner filed a motion to reconsider the same day. In it, he asserted that he was not allowed to present photographs and videos as evidence that would have supported his claim. He further argued that he had established "interference with personal liberty," which, he contended, was sufficient to support his request for an order of protection without a requirement that he establish physical harm. The court denied the motion to reconsider on October 11, 2023. This timely pro se appeal followed.
¶ 14 II. ANALYSIS
¶ 15 The petitioner raises eight arguments in this appeal, most of which concern evidentiary rulings. Before addressing those arguments, we note that the record before us does not contain either a transcript or bystander's report of the October 5, 2023, hearing. Although the petitioner did submit a proposed bystander's report, the trial court declined to approve and certify it, finding that it did not accurately reflect what occurred at the hearing. See Ill. S.Ct. R. 323(c) (eff. July 1, 2017); Allen v. Lin, 356 Ill.App.3d 405, 410 (2005). It was the petitioner's burden, as the appellant, to provide us with a record sufficiently complete to support his claims of error. As such, any gaps in the record will be resolved against the petitioner and will lead us to presume that the trial court's decision was correct. Foutch v. O'Bryant, 99 Ill.2d 389, 394 (1984). With this in mind, we turn our attention to the petitioner's contentions.
¶ 16 The petitioner argues that the court erred in excluding from evidence (1) testimony concerning incidents that occurred more than a year before he filed his petition, (2) testimony concerning incidents the court deemed to be irrelevant, (3) court documents, (4) Scharfinski's testimony describing an event she saw through a security camera feed, and (5) photographs and video recordings. In addition, he contends that the court erred by (1) refusing to allow him to read from a prepared statement during his testimony or to refer to notes concerning the times and dates of alleged incidents despite the court's knowledge of an unspecified disability adversely affecting his ability to communicate; (2) refusing to allow Scharfinski, who was also a witness in the case, to act as a caregiver and assist the petitioner during his testimony; and (3) permitting the respondent's attorney to serve motions on the petitioner through the email account of a third party who is not an attorney (likely Scharfinski). We reject these contentions.
¶ 17 We will first address the petitioner's challenges to the court's evidentiary rulings. Such rulings are matters within the discretion of the trial court. We will not reverse its decisions on appeal unless we find that the court abused its discretion. Avila v. Chicago Transit Authority, 2021 IL App (1st) 190636, ¶ 61. A court abuses its discretion where no reasonable person could take the view adopted by the trial court. Moreover, even if we find an abuse of discretion in the court's evidentiary rulings, we will not reverse unless the record demonstrates that the error resulted in substantial prejudice that affected the outcome of the proceedings. Id.
¶ 18 The petitioner first argues that the court erred by limiting testimony to incidents that occurred within a year before he filed his petition. He argues that there is no statute of limitations on a cause of action for an order of protection. In support of this contention, the petitioner cites section 214 of the Illinois Domestic Violence Act of 1986. See 750 ILCS 60/214 (West 2022). That statute governs protective orders in cases involving abuse by family members, as those terms are defined under the Domestic Violence Act. Id. § 214(a). It is therefore inapplicable to the case at hand, which is instead governed by the Stalking No Contact Order Act (740 ILCS 21/1 et seq. (West 2022)).
¶ 19 Relief under the Stalking No Contact Order Act is available only to victims of stalking. Id. § 15(1). The statutory definition of stalking is "a course of conduct" that the individual engaging in it knows or reasonably should know would cause a reasonable person to fear for his or her safety or the safety of another person or would cause a reasonable person to suffer emotional distress. Id. § 10. Emotional distress, in turn, is defined as "significant mental suffering, anxiety or harm." Id. A trial court does not abuse its discretion if it finds that an isolated incident occurring two years before an alleged course of conduct is not relevant to establishing a course of conduct fitting the statutory definition of stalking.
¶ 20 Moreover, without a complete record on appeal, it is impossible for this court to determine precisely what testimony was offered and excluded. It is also impossible to determine whether the exclusion of that testimony, if erroneous, had any impact on the outcome of the proceedings. See Avila, 2021 IL App (1st) 190636, ¶ 61. We must resolve these gaps in the record against the petitioner, as the appellant, and presume that the trial court correctly applied the law. See Foutch, 99 Ill.2d at 394.
¶ 21 The petitioner next contends that the court erred by excluding testimony concerning incidents the court deemed to be irrelevant-specifically, the respondent's alleged interference with the petitioner's waste collection and the respondent's burning of leaves in his yard. The petitioner argues that the court found the proffered testimony about these incidents to be irrelevant because "the judge personally does not view them as harassment." He further contends that "direct physical harm is not a prerequisite for harassment." We are not persuaded.
¶ 22 We first note that the Stalking No Contact Order Act does not require a finding of harassment, although many of the types of conduct that comprise stalking might also comprise harassment. It appears that the petitioner's argument once again relies on the Domestic Violence Act, rather than the Stalking No Contact Order Act. See 750 ILCS 60/103(7) (West 2022) (defining harassment).
¶ 23 Nevertheless, the petitioner is correct that a court may issue an order of protection under the Stalking No Contact Order Act without a finding of direct physical harm to the petitioner. See 740 ILCS 21/80(a) (West 2022). If the record before us demonstrated that the court excluded testimony based solely on the fact that it did not constitute evidence of physical harm or the threat of physical harm, we would agree that the court ruled in error. However, as we mentioned previously, the record does not indicate precisely what testimony was excluded or the basis upon which the court excluded it. We must therefore presume the court ruled correctly. See Foutch, 99 Ill.2d at 394.
¶ 24 Further, evidence that the respondent burned leaves in his own yard and moved the petitioner's waste bins, absent more, does not establish a course of conduct that the respondent reasonably should have known would cause a reasonable person to fear for his safety, fear for the safety of another person, or experience significant emotional suffering or anxiety. See 740 ILCS 21/10 (West 2022). Thus, if the court excluded the testimony based on relevancy, as the petitioner asserts, it did not abuse its discretion in doing so. See Ill. R. Evid. 402 (eff. Jan. 1, 2011) (providing that evidence is not admissible if it is not relevant); Boren v. BOC Group, Inc., 385 Ill.App.3d 248, 255 (2008) (explaining that evidence is relevant and admissible if it tends to prove a fact in issue, but irrelevant evidence is properly excluded). For these reasons, we reject the petitioner's claim.
¶ 25 The petitioner's next argument is that the court erred in refusing to admit court documents into evidence. He contends that the documents are admissible under an exception to the hearsay rule contained in Illinois Rule of Evidence 803(8). Under that rule, the records and reports of public agencies or public offices are admissible if they set forth the activities of the agency or office or describe matters observed pursuant to a legal duty. Ill. R. Evid. 803(8)(A), (B) (eff. Jan. 25, 2023).The petitioner does not explain how court records fit within this rule.
We note parenthetically that the petitioner cites Rule 803(8)(C). That provision applies only in criminal proceedings and in civil lawsuits against the State. Ill. R. Evid. 803(8)(C) (eff. Jan. 25, 2023). It is therefore inapplicable to the case at hand.
¶ 26 Although we note that the petitioner could have asked the court to take judicial notice of court documents from another case (see Bush v. J&J Transmissions, Inc., 2017 IL App (3d) 160254, ¶ 11), he does not allege that he made such a request here, and he does not argue that the court erred in denying a request to take judicial notice of court records. He has thus forfeited any such contention. See Ill. S.Ct. R. 341(h)(7) (eff. Oct. 1, 2020).
¶ 27 We further note that, although the petitioner does not indicate what court records he sought to admit into evidence, he alleged in his petition that the respondent previously filed an action seeking an order of protection against the petitioner. He argued that the relief requested by the respondent in that previous proceeding was less reasonable than the relief the petitioner sought in this proceeding. That information would not be relevant in this case. We find no error or abuse of discretion in the court's decision to exclude the documents.
¶ 28 The petitioner next argues that the court erred in refusing to allow Scharfinski to testify concerning an event she saw through the couple's security camera feed. He notes that the court excluded the testimony on the basis that it constituted hearsay. The petitioner asserts that Scharfinski has limited mobility and is usually only able to observe what occurs outside by watching the security camera feed. He argues that testimony concerning the contents of the security camera footage is admissible under the hearsay exception set forth in Illinois Rule of Evidence 803(6) (eff Jan. 25, 2023). We disagree.
¶ 29 The provision cited by the petitioner governs the admission of records of the regularly conducted activity of a business. Id. It is generally known as the business records exception. See People v. Brown, 2021 IL App (3d) 170621, ¶ 34. The petitioner acknowledges that the exception applies only to businesses. He asserts, however, that he and Scharfinski ran a home-based business and argues that the exception should apply because the security camera ran all the time, thus fulfilling the "regularly conducted activity" requirement. This argument misconstrues the exception.
¶ 30 The business records exception applies to reports, records, memoranda, and data collections of acts, events, or conditions that are made at or near the time of those acts, events, or conditions by someone with knowledge. Ill. R. Evid. 803(6) (eff. Jan. 25, 2023). Even assuming a recording of the video feed from the petitioner's security camera fits within this definition, a business record is only admissible if the party seeking to admit it into evidence establishes that (1) the record was made as a memorandum or record of the acts, events, and conditions at issue; (2) the record was made in the regular course of business; and (3) it was the regular course of the business to make such records at or within a reasonable time after the acts or events recorded. Brown, 2021 IL App (3d) 170621, ¶ 34. Allowing a witness to testify to the contents of a business record constitutes an abuse of discretion where the proponent of the testimony fails to offer the record itself into evidence or to satisfy the foundational elements for its admission. See id. ¶ 35.
¶ 31 Here, the petitioner apparently offered the video recording of the security camera feed into evidence. As we will discuss next, he argues on appeal that the court erred in finding it to be inadmissible. However, on the limited record before us, there is no indication that he satisfied the foundational elements necessary for the admission of a business record, nor is there any indication that he even attempted to do so. As we explained earlier, it was the petitioner's burden, as the appellant in this case, to provide a record sufficient to support his claims of error. Because he has not done so here, we must presume the court properly applied the law. Foutch, 99 Ill.2d at 394.
It is worth noting that even the unsupported allegations in the petitioner's brief demonstrate that the business records exception is not applicable to the security camera video. The petitioner asserts that he and Scharfinski operated a home-based garden business "before the harassment started" and that a protective order against the respondent is necessary for them to resume business operations. This implies that they were not operating a business at the relevant time, and any recordings therefore could not have been made in the regular course of the business.
¶ 32 Moreover, we believe the more appropriate framework for considering the admissibility of the contents of the video feed are the rules pertaining to the admission of recordings. See Ill. R. Evid. 1001(1) (eff. Jan. 1, 2011) (defining "writings and recordings" to include "letters, words, sounds, or numbers *** set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation"). Generally, proof of the contents of a recording requires admission of the original recording. Ill. R. Evid. 1002 (eff. Jan. 1, 2011). Other evidence of its contents-including witness testimony-is admissible under specific circumstances that are not present here. See Ill. R. Evid. 1004 (eff. Jan. 1, 2011); Ill. R. Evid. 1007 (eff. Jan. 1, 2011). We find no abuse of discretion in the court's ruling on the record before us.
¶ 33 Next, the petitioner argues that the court erred in excluding photographs and video recordings from evidence. He acknowledges that the court's ruling was based on a lack of foundation. He does not argue or allege that he attempted to lay a proper foundation for the photographs and video recordings, although he does make the conclusory assertion that the court "should have" allowed him to lay a foundation. Because the record on appeal is incomplete, we are not able to determine whether the petitioner attempted to lay a foundation for admission of the photographs and video recordings. We are also unable to determine what, if any, relevance the evidence had to the petitioner's claim. Because the petitioner is the appellant, we must resolve these gaps in the record against the petitioner and presume the court ruled correctly. See Foutch, 99 Ill.2d at 394.
¶ 34 We next address the petitioner's contention that the court erred by failing to allow him to read from a prepared statement or refer to notes concerning the dates and times of alleged incidents. He argues that his prepared statement was admissible under Illinois Rule of Evidence 803(5) (eff. Jan. 25, 2023), and he asserts that the court's ruling was particularly prejudicial because he has a disability that made it difficult for him to testify. As we noted earlier, the petitioner does not specify what type of disabling condition he has. He likewise does not allege that he requested any accommodation, and the record does not indicate that he did so.
¶ 35 The petitioner argues that his prepared statement was admissible as a recorded recollection under Rule of Evidence 803(5). We disagree. That provision defines a recorded recollection as "[a] memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately." Ill. R. Evid. 803(5) (eff. Jan. 25, 2023). A recorded recollection is admissible as an exception to the hearsay rule, but the proponent must establish that the record or memorandum was made when the matter was fresh in the witness's mind. Id. A statement prepared for purposes of litigation does not meet this definition or satisfy these requirements.
¶ 36 We note, however, that under a rule not cited by the petitioner, a witness is permitted to use a writing to refresh his memory. See Ill. R. Evid. 612 (eff. Jan. 1, 2011). To use a writing to refresh a witness's recollection, a party must satisfy certain requirements, such as establishing that the witness is unable to testify from memory and making the writing available to the other party. Id. This rule would have allowed the petitioner to use a writing to refresh his memory concerning the times and dates of incidents during his testimony if he satisfied its requirements. Because the record before us is incomplete, we have no indication that the petitioner attempted to satisfy these requirements or even asked to refer to notes to refresh his memory. As we have repeatedly stated, we must therefore presume that the trial court correctly applied the law. See Foutch, 99 Ill.2d at 394. In addition, because the petitioner does not specifically make this argument on appeal, he has forfeited any claim that the court erred in refusing to allow him to refresh his memory with a writing in accordance with Illinois Rule of Evidence 612. See Ill. S.Ct. R. 341(h)(7) (eff. Oct. 1, 2020).
¶ 37 The petitioner next contends that the court erred in refusing to allow Scharfinski to act as both a witness and his caregiver so that she could assist him during his testimony. He asserts that her assistance was needed as an accommodation due to his disability. He further asserts that the court was aware of his disability and his need for assistance. We find the petitioner's argument unpersuasive.
¶ 38 The petitioner correctly asserts that reasonable accommodation to people with disabilities is required under the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq. (2018)). However, he has not provided this court with a record sufficient to demonstrate that he requested accommodation due to a disability, much less what that accommodation was. Likewise, he does not cite specific statutory provisions or other authority to support his implicit argument that his requested accommodation was reasonable and required. As the appellant, it was the petitioner's responsibility to provide an adequate record to support his claims. Foutch, 99 Ill.2d at 394. It was also his responsibility to provide this court with citations to authority in support of his arguments. See Ill. S.Ct. R. 341(h)(7) (eff. Oct. 1, 2020); see also In re Marriage of Katsap, 2022 IL App (2d) 210706, ¶ 143 (stating that an appellate court is not "a repository into which" appellants may dump the burden of conducting research and developing their arguments). For these reasons, we reject the petitioner's contention.
¶ 39 Finally, the petitioner argues that the court erred by allowing the respondent's attorney to serve motions and other pleadings on him through the email address of a third party. The record indicates that the respondent's attorney served motions and other responsive pleadings on the petitioner by emailing them to an email address containing the username "mscharfinski," a username which suggests that the email address likely belonged to the petitioner's partner, Melissa Scharfinski, or someone related to her. In an appendix to his brief, the petitioner explains that he provided this address to the court when he filed his petition because he was uncomfortable providing his own email address to the respondent or his attorney, John Kochanski, a relative of the respondent.
¶ 40 On appeal, the petitioner asserts that he "notified the judge" that the mscharfinski email address was being used for service of pleadings. He argues that he does not believe that use of a non-attorney third party's email address for service is permissible "when physical mail is both preferred and sufficient."
¶ 41 The only authority he cites in support of his contention is section 2-201 of the Code of Civil Procedure (735 ILCS 5/2-201 (West 2022)). As he correctly notes, the statute does not provide for service by email. The statute, however, governs service of process. See id. Illinois Supreme Court Rule 11 governs service of documents other than process and the complaint. That rule expressly requires such documents to be served electronically using the email address provided by the attorney or unrepresented party "unless otherwise specified by rule or order of the court." Ill. S.Ct. R. 11(c) (eff. July 1, 2021). The rule provides alternative means for service if an unrepresented party does not have access to email. Id. As such, we find no error.
¶ 42 Moreover, even assuming error, it is unclear how service of pleadings through the third-party email address provided to the court by the petitioner could have impacted the outcome of the proceedings. We thus reject the petitioner's contention.
¶ 43 III. CONCLUSION
¶ 44 For the foregoing reasons, we affirm the judgment of the trial court.
¶ 45 Affirmed.