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SECOND DIVISION
FEBRUARY 27, 2001

Plaintiff Mary Perry sued defendant Loretta Minor for past-due rent and possession of property. Defendant filed acounterclaim against plaintiff and also named Ronald Perry, plaintiff's son, as a third-party defendant "for nominal andderivative purposes only." Plaintiff responded to the counterclaim by filing an amended complaint, an answer to thecounterclaim and a prayer for an accounting and judgment against Ronald Perry. Upon plaintiff's motion, the trial courtentered sanctions against defendant, barring her from presenting evidence or testimony at trial for failure to answerinterrogatories.

At a bench trial, the court enforced the sanctions and further dismissed Ronald Perry from the case sua sponte becausedefendant had only named him for nominal and derivative purposes. The court entered judgment in plaintiff's favor in theamount 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) thetrial court abused its sanctioning discretion when it barred the defendant from presenting any evidence at trial because shefailed to answer interrogatories in a timely fashion. We also note plaintiff's argument that this court lacks jurisdiction overthe 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 andpossession of property located at 4234 South St. Lawrence, Chicago, Illinois. On August 25, 1997, defendant filed ananswer and affirmative defenses by leave of court. On September 12, 1997, defendant filed a counterclaim against plaintiffand also named Ronald Perry (Ronald) as a third-party defendant "for nominal and derivative purposes only." Ronald isplaintiff'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 rentPlaintiff 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 amountingto $16,813. In her answer to defendant's counterclaim, plaintiff, inter alia, denies that Ronald Perry was her propertymanager 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 hecollected 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 thesecond request to admit on March 17, 1998. Defendant's failure to timely respond to this second set of interrogatories (theFebruary 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 ordereddefendant to answer plaintiff's February interrogatories by July 10, 1998. The court also ordered defendant to issue asummons to Ronald by this date. On August 11, 1998, plaintiff filed another motion to compel -- this time for plaintiff'sfailure to issue a summons to Ronald. A week later, on August 17, 1998, Ronald filed his appearance and answer todefendant's counterclaim.

On October 2, 1998, plaintiff filed a second motion to compel defendant to answer its February interrogatories. OnOctober 13, 1998, the court ordered defendant to answer the interrogatories within 10 days, by October 23, 1998. When thedate passed, plaintiff filed a motion to bar defendant from presenting evidence or testimony as sanctions for defendant'sdiscovery violation. Defendant finally answered the February interrogatories on October 30, 1998, although plaintiffalleges that defendant did not sign the answers as required. Despite defendant's answers, on November 5, 1998, the courtgranted plaintiff's motion to bar defendant from presenting evidence or testimony at trial (the November order). Neitherdefendant 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 denieddefendant's motion because defendant failed to appear. Plaintiff alleges that defense attorney's law clerk was present butfailed to step up when the case was called. When defendant refiled her motion to vacate the November order, the courtagain denied the motion on April 29, 1999.

Bench Trial

Before trial, the court ruled that, pursuant to its November order, defendant was barred from presenting any evidence ortestimony 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 securitydoors. Brenda alleged that Ronald agreed to perform some redecorating work for plaintiff, but she was not specific aboutthe nature of the work.

After defendant moved out, Brenda observed damage to the house. Specifically, one window was boarded over, portions ofthe walls were damaged after mirrors had been removed, the hardwood floors were no longer in good condition, thewindow 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 thehouse.

Plaintiff testified that she had agreed to let defendant rent the house while redecorating was ongoing because her sonRonald urged her to do so. The agreement was to be as follows: during the first year, defendant would pay $500 per monthdirectly to Ronald for redecorating, in lieu of rent. Thereafter, defendant was to pay the $500 per month in rent directly toplaintiff. Plaintiff stated that Ronald was not her agent and she did not agree to allow any work on the property without herapproval.

After the end of the first year, plaintiff testified that she repeatedly contacted Ronald and defendant for rent payment, butboth presented a number of excuses. While defendant had made some payments, she still owed rent to plaintiff. OnJanuary 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 balancedue.

When defendant attempted to call Ronald as her first witness, the court sustained plaintiff's objection, citing the Novemberorder. The court also stated that Ronald was a third-party defendant "for nominal and derivative purposes only" and thatplaintiff never named or served him as an actual party defendant. For the same reasons, the court further prohibited Ronaldfrom calling any witnesses or presenting any evidence. At that point, the trial court sua sponte dismissed Ronald from thecase.

The trial court invited, but did not require, the parties to submit briefs on the issue of Ronald's dismissal. None weresubmitted, but Ronald submitted his position statement in open court just prior to the court's ruling. After reviewing it, thecourt indicated that Ronald's statement addressed the issue of defendant living rent-free for the first year at the house butdid not address the issue of why Ronald should not be dismissed from the case. According to the court, the statement onlyconfirmed plaintiff's claim that defendant was to reside at the house with rent to be paid to plaintiff through Ronald. Thedefense 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 rentand $7,303.66 in damages. Defendant appeals. We affirm in part, reverse in part and remand for a new trial.

ANALYSIS

I. JURISDICTION

Before considering the two issues raised by defendant in this appeal, we note plaintiff's argument that this court lacksjurisdiction because defendant failed to raise those issues in her notice of appeal. Specifically, plaintiff argues that thenotice of appeal only appeals the court's order of October 18, 1998, awarding $23,603.66 to plaintiff, but fails to mentionthe November order or subsequent order prohibiting Ronald from presenting evidence at trial.

The purpose of a notice of appeal is to inform the prevailing party that the opposing party seeks review of the judgment;thus, if the notice sufficiently sets forth the judgment complained of and the relief sought, mere formal defects will notdeprive the court of jurisdiction. Taylor v. Peoples Gas Light & Coke Co., 275 Ill. App. 3d 655, 659, 656 N.E.2d 134(1995). We agree that an appellate court has jurisdiction of only those matters raised in the notice of appeal. Wells v.Kern, 25 Ill. App. 3d 93, 98, 322 N.E.2d 496 (1975). However, a notice of appeal need not designate a particular order toconfer jurisdiction, so long as the order that is specified directly relates back to the judgment or order from which review issought. Taylor, 275 Ill. App. 3d at 659. Accordingly, an order that is not specified in the notice of appeal is reviewable if itis a "'step in the procedural progression leading to the judgment specified in the notice of appeal.'" Taylor, 275 Ill. App. 3dat 659, quoting Burtell v. First Charter Service Corp., 76 Ill. 2d 427, 435 (1979).

In the instant case, the court's November order and its ruling prohibiting Ronald from presenting evidence were steps in theprocedural progression leading to the court's final order dated October 18, 1999, and directly related to it. Also, plaintiff'scase, Wells, is inapposite. Wells, 25 Ill. App. 3d at 99 (where notice of appeal was filed more than one year from entry ofdefault judgment, and such notice did not raise the issues presented in the petitions seeking relief from such judgment, theparties could not waive the defect by treating the appeal as one from denial of the postjudgment petitions). Accordingly,defendant's notice of appeal was sufficient to confer jurisdiction upon this court.

II. DISMISSAL OF THIRD-PARTY DEFENDANT

Next, defendant argues that the trial court erred by dismissing third-party defendant Ronald from the action. Section 2-406(b) of the Illinois Civil Practice Law allows a defendant in a lawsuit to bring an additional party into an action andprovides as follows:

" Within the time for filing his or her answer or thereafter by leave of court, a defendant may by third-party complaintbring in as a defendant a person not a party to the action who is or may be liable to him or her for all or part of theplaintiff's claim against him or her." 735 ILCS 5/2-406 (West 1998).

"A proper third-party action requires derivative liability where the liability of the third-party defendant is dependent on theliability of the third-party plaintiff to the original plaintiff." Board of Trustees of Community College, District No. 508 v.Coopers & Lybrand LLP, 296 Ill. App. 3d 538, 549 (1998). In defendant's counterclaim that named Ronald Perry as third-party defendant "for nominal and derivative purposes only," she merely claimed that Ronald gave her permission to spendmoney on repairs, alleging:

"With the permission of Counter-Defendant's property manager, Ronald L. Perry, and with full knowledge on the part ofCounter-Defendant, Mary Perry - Counter-Plaintiff has paid approximately Thirty-two Thousand Dollars and no cents($32,000) in making repairs, furnishing material and maintaining said premises to cure aforesaid defects and furtherdeterioration of the premises." (Emphasis added.)

Defendant's prayer for relief asks the court to grant judgment against plaintiff for $25,000 and further seeks costs inconnection with this suit. Nothing in the counterclaim alleges a cause of action against Ronald, and defendant only statesthat "Ronald L. Perry [is named] as a Third Party Defendant herein for nominal and derivative purposes only."

In response to the February interrogatories, defendant stated that she never personally purchased materials used to repair thehouse. Instead, she "believe[d] that all materials purchased for the renovation of the subject property were purchased byRonald Perry; however, her investigation with respect to the information sought by this interrogatory continues." Based onthis response, one could imply a cause of action against Ronald for absconding with defendant's funds. However, defendantalleges no such cause of action in her pleadings, and during oral argument, defense counsel stated that defendant andRonald were "allied" in this case. Without specific allegations for derivative liability, the complaint fails to demonstrateany relationship between defendant and Ronald that would support application of indemnity principles (Weisbrook v.Clyde C. Netzley, Inc., 58 Ill. App. 3d 862, 864, 374 N.E.2d 1102 (1978)); at most, defendant attempts by this means toassert a defense to the principal action (City of West Chicago v. Clark, 58 Ill. App. 3d 847, 855-56, 374 N.E.2d 1277(1978)). Thus, dismissal of third-party defendant was proper.

Defendant also argues that the court lacked authority to dismiss Ronald sua sponte. Defendant relies upon cases in whichthe court's sua sponte decisions were improper because the opposing party did not have the opportunity to respond. SeePeterson v. Randhava, 313 Ill. App. 3d 1, 11, 729 N.E.2d 75 (2000) (trial court's dismissal of action by granting summaryjudgment sua sponte was improper because parties received no notice and opportunity to respond); People v. Kitchen, 189Ill. 2d 424, 433-35, 727 N.E.2d 189 (1999) (trial court's sua sponte dismissal of defendant's postconviction petition wasimproper because it failed to give defendant notice and denied him due process); Berg v. Mid-America Industrial, Inc., 293Ill. App. 3d 731, 688 N.E.2d 699 (1997) (trial court's dismissal orders were entered without notice or hearing and weredevoid of sufficient information or valid reasons justifying dismissal).

Unlike Peterson, Kitchen and Berg, the court in the instant case specifically invited the parties to submit briefs concerningRonald's dismissal. The defendant had notice and fails to explain why she did not avail herself of an opportunity torespond to the court's action. Ronald did submit a position statement on the matter, and upon review, the court concludedthat it did not address the issue of why Ronald should not be dismissed from the case. Furthermore, in our view, defendantdid not properly plead a third-party complaint in this case either in form or in substance and, although sua sponte dismissalsby a court when justification was not patently clear can constitute error, the justification in the instant case is clear andRonald Perry was properly dismissed as a third-party defendant.

III. DISCOVERY SANCTION

Finally, defendant contends that the trial court's order barring defendant from presenting any evidence at trial was adisproportionately severe sanction for defendant's failure to timely respond to the February interrogatories. We agree.

A just order of sanctions ensures both discovery and a trial on the merits. Shimanovsky v. General Motors Corp., 181 Ill.2d 112, 123, 692 N.E.2d 286 (1998). The purpose for imposing sanctions is to coerce compliance with discovery rules andorders, not to punish the dilatory party. Sander v. Dow Chemical Co., 166 Ill. 2d 48, 67-68, 651 N.E.2d 1071 (1995). Drastic sanctions may be invoked, however, in cases where the party's actions show a "deliberate, contumacious orunwarranted disregard of the court's authority." Shimanovsky, 181 Ill. 2d at 123. The court's imposition of a particularsanction will not be reversed absent a clear abuse of discretion. Sander, 166 Ill. 2d at 67. Factors used to determinewhether a sanction was appropriate include: (1) surprise to the adverse party; (2) prejudicial effect of the preferredtestimony or evidence; (3) nature of the testimony or evidence; (4) diligence of the adverse party in seeking discovery; (5)timeliness of the adverse party's objection to the testimony or evidence; and (6) the good faith of the party offering thetestimony or evidence. Shimanovsky, 181 Ill. 2d at 124. No single factor is dispositive. Shimanovsky, 181 Ill. 2d at 124.

In the instant case, factors that weigh against the sanction include the fact that plaintiff cannot claim she was surprised bythe answers, which were filed six days before the court entered sanctions and 10 months before trial. Defendant alsosuffered prejudice because the sanction did not allow her to present the merits of her case at trial. On the other hand,plaintiff diligently prosecuted the lawsuit and defendant failed to tender any excuses for her noncompliance with discovery.

Defendant relies on Humboldt-Armitage Corp. v. Illinois Fair Plan Ass'n, 86 Ill. App. 3d 888, 408 N.E.2d 307 (1980), andCook v. Schwab Rehabilitation, 77 Ill. App. 3d 245, 395 N.E.2d 1100 (1979). In Humboldt, plaintiff failed to comply withthe trial court's order to answer interrogatories. Plaintiff also failed to appear at the sanction hearing and the trial courtdismissed the complaint. Plaintiff then filed a motion to vacate the dismissal and explained that his failure to appear at thesanction hearing was due to a clerical error in his law office. The trial court denied plaintiff's motion. In its motion forreconsideration, the plaintiff further explained that he was unable to comply with the trial court's original order because acopy of a sworn statement that was in defendant's possession was necessary to answer the interrogatories and resulted in thedelay. Humboldt, 86 Ill. App. 3d at 889-91.

The court noted the plaintiff's explanations and concluded that plaintiff's dilatory conduct did not exhibit a deliberate andcontumacious disregard of the court's authority warranting dismissal of the complaint. Humboldt, 86 Ill. App. 3d at 891.Similarly, the reviewing court in Cook held that dismissal of plaintiff's cause of action was an improper sanction becauseplaintiff had demonstrated diligence and willingness to comply with discovery rules. Additionally, the court found thatplaintiff's two-month delay in offering an excuse for failing to file within the required time period was not so egregious asto merit a dismissal of his cause of action. Cook, 77 Ill. App. 3d at 247-48.

Plaintiff argues that this case is distinguishable from Humboldt and Cook because defendant has failed to offer any reasonswhy she failed to comply with discovery. Plaintiff argues that this case is more closely analogous to Harris v. Harris, 196Ill. App. 3d 815, 823, 555 N.E.2d 10 (1990). In Harris, the petitioner had failed to appear at her scheduled deposition onfour occasions, two of which had been ordered by the court. On one occasion, her attorney alleged that petitioner wasbedridden due to back problems. The court ordered a medical affidavit, but petitioner failed to produce one. At this point,the trial court conducted a hearing on respondent's motion for sanctions. The trial court awarded respondent attorney feesand costs as a sanction for petitioner's noncompliance with discovery orders. Despite previous sanctions, petitioner furtherfailed to comply with the court's order to produce documents, and when she attempted to comply, she failed to produce allof the documents. At the time of a second sanctions motion, petitioner still had not appeared at her deposition, nor had sheproduced all of the documents. Harris, 196 Ill. App. 3d at 818-19.

On review, the court affirmed the dismissal of petitioner's action due to her flagrant disregard of the court's orders. Basedon the record, the court was unpersuaded that petitioner had any legitimate reasons for not complying with the discoveryorders. The court further emphasized that petitioner's conduct was not a one-time occurrence but, rather, revealed apronounced pattern of deliberate and blatant disregard of discovery rules. Harris, 196 Ill. App. 3d at 824.

In her reply brief, defendant argues that Harris is distinguishable because, before dismissing petitioner's action, the circuitcourt had imposed other, less severe sanctions, including the assessment of attorney fees and costs. We agree.

In the instant case, the trial court could have imposed a less severe sanction, such as assessing attorney fees and costs. Instead, the trial court banned the defendant from testifying because of discovery violations. Additionally, the trial courtalso banned Ronald Perry from testifying. The record reflects that Ronald Perry filed an answer to defendant'scounterclaim wherein he made admissions prior to being dismissed from the case as a third-party defendant. In our view,these admissions raise crucial factual issues in the case. Also, these admissions are unrelated to the defendant's discoveryviolations. Additionally, the plaintiff's answer to defendant's counterclaim underscores the importance of Ronald Perry'stestimony in the instant case. The sanctions imposed by the trial court barring the defendant from testifying and alsobarring the defendant from calling Ronald Perry as a witness constituted a clear abuse of discretion. Sander, 166 Ill. 2d at67. Accordingly, we reverse.

For the foregoing reasons, the judgment of the trial court is reversed and this case is remanded to the trial court for a newtrial.

Affirmed in part and reversed in part; cause remanded.

CAHILL, P.J. and McBRIDE, J., concur.