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Perry v. Minor

February 27, 2001

MARY E. PERRY, PLAINTIFF-APPELLEE,
v.
LORETTA MINOR, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County No. 97 MI 719061 The Honorable Ann Houser, Judge Presiding.

The opinion of the court was delivered by: Justice Cousins

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.

BACKGROUND

Complaint, Counterclaim and Amended Complaint

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.

Discovery Sanction

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 ...


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