Perry v. Minor
| Decision Date | 27 February 2001 |
| Docket Number | No. 1-99-3892.,1-99-3892. |
| Citation | 745 N.E.2d 113,253 Ill.Dec. 339,319 Ill. App.3d 703 |
| Parties | Mary E. PERRY, Plaintiff-Appellee, v. Loretta MINOR, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Noel T. Wroblewski, Chicago, for Plaintiff-Appellee.
James A. Shapiro, Shapiro & Schwartz, Chicago, for Defendant-Appellant.
Plaintiff Mary Perry sued defendant Loretta Minor for past-due rent and possession of property. Defendant filed a counterclaim against plaintiff and also named Ronald Perry, plaintiff's son, as a third-party defendant "for nominal and derivative purposes only." Plaintiff responded to the counterclaim by filing an amended complaint, an answer to the counterclaim and a prayer for an accounting and judgment against Ronald Perry. Upon plaintiff's motion, the trial court entered sanctions against defendant, barring her from presenting evidence or testimony at trial for failure to answer interrogatories.
At a bench trial, the court enforced the sanctions and further dismissed Ronald Perry from the case sua sponte because defendant had only named him for nominal and derivative purposes. The court entered judgment in plaintiff's favor in the amount of $23,603.66 for past-due rent and damages. Defendant filed this timely notice of appeal.
On appeal, defendant argues that: (1) the trial court erred by dismissing the third-party defendant from the case; and (2) the trial court abused its sanctioning discretion when it barred the defendant from presenting any evidence at trial because she failed to answer interrogatories in a timely fashion. We also note plaintiff's argument that this court lacks jurisdiction over the matter for an alleged defect in the notice of appeal.
On June 25, 1997, plaintiff filed a pro se forcible entry and detainer complaint against defendant for past-due rent and possession of property located at 4234 South St. Lawrence, Chicago, Illinois. On August 25, 1997, defendant filed an answer and affirmative defenses by leave of court. On September 12, 1997, defendant filed a counterclaim against plaintiff and also named Ronald Perry (Ronald) as a third-party defendant "for nominal and derivative purposes only." Ronald is plaintiff's son and manager of the subject property.
Defendant's counterclaim requested restitution for money that she allegedly spent to improve and repair the property. Specifically, defendant alleged that the property was in disrepair during her tenancy and, that, with Ronald's permission, she spent $32,000 to make repairs. She claimed that she "overpaid the rent by an amount far exceeding the amount of rent Plaintiff claims to be due and owing by at least $26,500."
Plaintiff's amended complaint alleged that defendant owed rent in the amount of $17,400 and the cost of repairs amounting to $16,813. In her answer to defendant's counterclaim, plaintiff, inter alia, denies that Ronald Perry was her property manager and agent as claimed by the defendant. In addition to praying for judgment against the defendant, Loretta Minor, plaintiff also prayed for an accounting and judgment against third-party defendant Ronald Perry for any rents that he collected from defendant Loretta Minor and also for causing damage to the property and the removal of items therefrom.
On October 30, 1997, plaintiff commenced written discovery by filing: (1) Rule 213 (134 Ill.2d R. 213) interrogatories; (2) a request to produce; and (3) a request to admit. On December 22, 1997, defendant answered (1) and (3). On February 18, 1998, plaintiff filed: (1) a second set of interrogatories and (2) a second request to admit. Defendant responded to the second request to admit on March 17, 1998. Defendant's failure to timely respond to this second set of interrogatories (the February interrogatories) is at the heart of the sanctions dispute.
On March 10, 1998, plaintiff filed a motion to compel defendant to answer discovery. On June 29, 1998, the court ordered defendant to answer plaintiff's February interrogatories by July 10, 1998. The court also ordered defendant to issue a summons to Ronald by this date. On August 11, 1998, plaintiff filed another motion to compel—this time for plaintiff's failure to issue a summons to Ronald. A week later, on August 17, 1998, Ronald filed his appearance and answer to defendant's counterclaim.
On October 2, 1998, plaintiff filed a second motion to compel defendant to answer its February interrogatories. On October 13, 1998, the court ordered defendant to answer the interrogatories within 10 days, by October 23, 1998. When the date passed, plaintiff filed a motion to bar defendant from presenting evidence or testimony as sanctions for defendant's discovery violation. Defendant finally answered the February interrogatories on October 30, 1998, although plaintiff alleges that defendant did not sign the answers as required. Despite defendant's answers, on November 5, 1998, the court granted plaintiff's motion to bar defendant from presenting evidence or testimony at trial (the November order). Neither defendant nor her attorney was present for this motion.
On December 4, 1998, defendant filed a motion to vacate the November order. On February 5, 1999, the court denied defendant's motion because defendant failed to appear. Plaintiff alleges that defense attorney's law clerk was present but failed to step up when the case was called. When defendant refiled her motion to vacate the November order, the court again denied the motion on April 29, 1999.
Before trial, the court ruled that, pursuant to its November order, defendant was barred from presenting any evidence or testimony at trial. The court, however, denied plaintiff's motion to bar Ronald from testifying or presenting evidence.
Only plaintiff and her daughter Brenda testified at trial. Brenda testified that she lived in the house at issue until June 1993, when defendant moved in. While Brenda lived in the house, the plumbing, electrical and heating systems were operational. She stated that the hardwood floors were in good condition, there were two chandeliers, a stove, refrigerator and security doors. Brenda alleged that Ronald agreed to perform some redecorating work for plaintiff, but she was not specific about the nature of the work.
After defendant moved out, Brenda observed damage to the house. Specifically, one window was boarded over, portions of the walls were damaged after mirrors had been removed, the hardwood floors were no longer in good condition, the window sills required repair, and the interior and exterior needed painting. Brenda also observed that the stove, refrigerator, and security doors had been removed. According to plaintiff, videotape evidence also detailed damage to the house.
Plaintiff testified that she had agreed to let defendant rent the house while redecorating was ongoing because her son Ronald urged her to do so. The agreement was to be as follows: during the first year, defendant would pay $500 per month directly to Ronald for redecorating, in lieu of rent. Thereafter, defendant was to pay the $500 per month in rent directly to plaintiff. Plaintiff stated that Ronald was not her agent and she did not agree to allow any work on the property without her approval.
After the end of the first year, plaintiff testified that she repeatedly contacted Ronald and defendant for rent payment, but both presented a number of excuses. While defendant had made some payments, she still owed rent to plaintiff. On January 6, 1997, plaintiff sent demand letters to Ronald and defendant for the unpaid rent, which were unanswered. Plaintiff then filed this suit.
Plaintiff further testified that she never authorized her son or defendant to perform any work beyond the initial agreement. She waited over three years to evict defendant because she allowed Ronald to "handle things" as she spent time in Georgia. The parties stipulated that defendant did pay $4,200 of rent, although they disagreed as to whether there was still a balance due.
When defendant attempted to call Ronald as her first witness, the court sustained plaintiff's objection, citing the November order. The court also stated that Ronald was a third-party defendant "for nominal and derivative purposes only" and that plaintiff never named or served him as an actual party defendant. For the same reasons, the court further prohibited Ronald from calling any witnesses or presenting any evidence. At that point, the trial court sua sponte dismissed Ronald from the case.
The trial court invited, but did not require, the parties to submit briefs on the issue of Ronald's dismissal. None were submitted, but Ronald submitted his position statement in open court just prior to the court's ruling. After reviewing it, the court indicated that Ronald's statement addressed the issue of defendant living rent-free for the first year at the house but did not address the issue of why Ronald should not be dismissed from the case. According to the court, the statement only confirmed plaintiff's claim that defendant was to reside at the house with rent to be paid to plaintiff through Ronald. The defense then rested.
On October 18, 1999, the court entered judgment in plaintiff's favor for $23,603.66, consisting of $16,300 for past-due rent and $7,303.66 in damages. Defendant appeals. We affirm in part, reverse in part and remand for a new trial.
Before considering the two issues raised by defendant in this appeal, we note plaintiff's argument that this court lacks jurisdiction because defendant failed to raise those issues in her notice of appeal. Specifically, plaintiff argues that the notice of appeal only appeals the court's order of October 18, 1998, awarding $23,603.66 to plaintiff, but fails to mention the November order or subsequent order...
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