THIRD DIVISION

Filed: 03/26/03

JUSTICE HOFFMAN delivered the opinion of the court:

The defendant, Barbrielle Buford, appeals from orders of thecircuit court which: prospectively barred her from testifying andpresenting evidence at a mandatory arbitration hearing if shefailed to answer written discovery by a specified date; barred herfrom rejecting an arbitration award in favor of the plaintiff,Government Employees Insurance Company; entered judgment on thearbitration award in favor of the plaintiff; and modified thejudgment entered in favor of the plaintiff on the arbitration awardto include a judgment in favor of the third-party defendant, RobertBower, on the defendant's third-party complaint for contribution. For the reasons which follow, we affirm.

From the limited record before us, we are able to glean thefollowing facts. The plaintiff filed the instant action assubrogee of Robert Bower, asserting a negligence claim against thedefendant as the consequence of a collision involving motorvehicles driven by Bower and the defendant. The complaint allegedthat the plaintiff insured Bower's vehicle and, as a consequence,became subrogated to his rights against the defendant when it paidfor the repairs to Bower's vehicle. The plaintiff sought recoveryfor the damages to Bower's vehicle.

The defendant answered the plaintiff's complaint, admittingthat she was involved in the collision alleged, but denying allcharges of negligence. In addition, the defendant filed a "ThirdParty Complaint for Contribution" against the plaintiff's subrogor,Bower, alleging that Bower was negligent in the operation of hismotor vehicle and seeking a judgment in favor of the defendant andagainst Bower "for Contribution in whole or in part for thenegligence attributable to the Third Party Defendant [Bower]." Bower answered the third-party complaint, denying all of thecharging allegations contained therein.

On October 26, 2000, Judge McCarthy entered an order which,among other things, set February 23, 2001, as the date upon whichall discovery was to be completed and assigned the case formandatory arbitration.

On February 6, 2001, the plaintiff filed a motion assertingthat the defendant had failed to answer interrogatories which weresent to her attorneys on November 20, 2000, and had also failed torespond to a production request sent on the same date. As asanction, the plaintiff requested that the defendant be barred fromtestifying or offering evidence either at the arbitration hearingor upon the trial of the cause. On February 15, 2001, JudgeMcCarthy entered an "Agreed Order" which provided that thedefendant was to answer written discovery by March 15, 2001, andthat her failure to comply would result in her "being barred fromtestifying and presenting evidence at the arbitration and/or trialof this matter." The order also provided that the sanction wouldremain in effect until vacated "upon motion by the party againstwhom the sanction applies." The record does not contain atranscript of the hearing on February 15, 2001, or a certifiedbystander's report of the proceedings held on that date.

On March 29, 2001, without leave of court, the defendant filedtardy answers to the plaintiff's interrogatories. There is noevidence in the record that the defendant responded to anyproduction request.

An arbitration hearing was held in the instant matter on April30, 2001. On that date, the arbitrators entered an award in thesum of $7,486.93 plus costs in favor of the plaintiff and againstthe defendant, which amounted to the full prayer for damagescontained in the plaintiff's complaint. The award also providedthat: "Defendant was barred from testifying and introducingevidence, pursuant to court order." The record does not contain atranscript of the arbitration proceeding.

On May 7, 2001, the defendant filed a motion to vacate theFebruary 15, 2001, order. In support of this motion, the defendantalleged that she filed her answers to interrogatories on March 29,2001, that she appeared at the arbitration hearing on April 30,2001, and that the plaintiff would not be prejudiced if theFebruary 15 order were vacated and she was permitted to testify attrial.

On May 10, 2001, the defendant filed a notice of rejection ofthe arbitration award and requested a trial.

On June 21, 2001, Judge Laurie denied the defendant's motionto vacate the February 15, 2001, order. The record does notcontain a transcript or a certified bystander's report of theproceedings held on that date.

On July 2, 2001, the plaintiff filed a motion seeking an orderbarring the defendant from rejecting the arbitration award,asserting as grounds both that the defendant was barred frompresenting any evidence and that she pled guilty to making animproper left turn. On August 10, 2001, Judge Laurie enteredjudgment on the arbitration award in favor of the plaintiff in thesum of $7,486.93 plus costs and also granted the plaintiff's motionto bar the defendant from rejecting the award. Again, however, therecord does not contain a transcript of the hearing on August 10. The record does contain what purports to be a bystander's report ofthose proceedings, but there is nothing in the record indicatingthat the trial court ever certified that report of proceedings asrequired by Supreme Court Rule 323(c) (166 Ill. 2d R. 323(c)).

On September 7, 2001, the defendant filed a notice of appeal. However, we dismissed that appeal on March 21, 2002, for want ofjurisdiction. We found that, since no order had been entereddisposing of the defendant's third-party claim against Bower, thetrial court's judgment of August 10, 2001, was not appealable inthe absence of any Supreme Court Rule 304(a) (155 Ill. 2d R.304(a)) findings. Government Employees Insurance Company v.Buford, No. 1-01-3321 (2002) (unpublished order under Supreme CourtRule 23).

On March 25, 2002, the plaintiff filed a motion in the circuitcourt requesting that the order of August 10, 2001, be modified toreflect that judgment was also entered against the defendant on herthird-party complaint against Bower. On May 2, 2002, Judge Lustiggranted the motion and so modified the judgment. The record doesnot contain a transcript of the May 2 hearing, but it does containan amended bystander's report of those proceedings certified byJudge Lustig.

On May 30, 2002, the defendant filed a timely notice ofappeal. In urging reversal of the judgments entered by the circuitcourt in favor of the plaintiff and Bower, the defendant contendsthat the trial court: 1) abused its discretion in barring her fromrejecting the arbitration award, 2) erred in failing to vacate theorder of February 15, 2001, 3) deprived her of her constitutionalright to a trial by jury by barring her from rejecting thearbitration award, and 4) erred as a matter of law in enteringjudgment in favor of Bower on her third-party complaint forcontribution.

As a preliminary matter, we must reject the defendant'sarguments that the trial court erred either in entering its orderof February 15, 2001, barring her from testifying at the arbitration hearing or at trial in the event that she failed to answerwritten discovery by March 15, 2001, or in declining to vacate thatorder on June 21, 2000. As the defendant concedes in her brief,neither a discovery sanction nor an order declining to vacate adiscovery sanction will be reversed on appeal absent an abuse ofdiscretion on the part of the circuit court. Workman v. St.Therese Medical Center, 266 Ill. App. 3d 286, 293, 640 N.E.2d 349(1994). Due to the absence in the record of any transcripts of theproceedings before the trial court on February 15, 2001, and June21, 2001, or any bystander's reports of those proceedings certifiedin accordance with Supreme Court Rule 323(c), we are unable toaddress the issue of whether the trial court abused its discretionin entering either order.

From the scant record before us, we have no means to determinethe prejudice, if any, that the plaintiff suffered by reason of thedefendant's failure to answer written discovery within the timeprovided in the circuit court's order of February 15, 2001.Further, although the record reflects that the defendant ultimatelyfiled tardy answers to interrogatories, there is no evidence in therecord that she ever responded to the plaintiff's productionrequest. The record filed in this case is also insufficient toallow any meaningful assessment of the trial court's reasoning inentering its orders of February 15, 2001, and June 21, 2001.

As the appellant, the defendant has the burden of providing asufficiently complete record to support any claim of error. EDNReal Estate Corp. v. Marquette National Bank, 263 Ill. App. 3d 161,167, 635 N.E.2d 738 (1994). In the absence of such a record, wemust presume that the trial court's orders of February 15, 2001,and June 21, 2001, were in conformity with the law and had asufficient factual basis. Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92, 459 N.E.2d 958 (1984).

We turn next to the question of whether the trial court erredin barring the defendant from rejecting the arbitration award andentering judgment thereon. Pursuant to the provisions of SupremeCourt Rule 91 (145 Ill. 2d R. 91), two grounds exist for barring aparty from rejecting an arbitration award, namely, unexcusedabsence from the arbitration hearing and a lack of good faith andmeaningful participation at that hearing. State Farm Insurance Co.v. Rodrigues, 324 Ill. App. 3d 736, 740, 756 N.E.2d 359 (2001). Inthis case, it is uncontroverted that the defendant appeared at thearbitration hearing. As a consequence, the only basis for barringher from rejecting the arbitration award could have been a findingthat she failed to participate in the hearing in good faith and ina meaningful manner. See 145 Ill. 2d R. 91(b).

Although permitted to do so under Rule 91(b), the arbitrationpanel made no finding that the defendant failed to participate ingood faith or in a meaningful manner. The award merely recitesthat the defendant "was barred from testifying and from introducingevidence, pursuant to court order." However, the circuit court isnot precluded from finding bad faith on the part of a party to anarbitration proceeding merely because the arbitrators made no suchfinding. Schmidt v. Joseph, 315 Ill. App. 3d 77, 85, 733 N.E.2d694 (2000).

A trial court's order barring a party from rejecting anarbitration award will be reversed on appeal only in circumstanceswhere the trial court has abused its discretion, which occurs whenthe trial court has acted arbitrarily or when its ruling exceedsthe bounds of reason. Schmidt, 315 Ill. App. 3d at 81. The defendant has raised a number of arguments in support of her contentionthat the trial court abused its discretion in this case. Sheasserts that she did in fact participate in the arbitrationproceeding in good faith. According to the defendant, althoughbarred from testifying or offering any evidence, she appeared atthe arbitration proceeding in person and by counsel and herattorney both argued the case and cross-examined the plaintiff'switnesses. However, other than her assertion that she appeared atthe arbitration hearing, the defendant's remaining contentions areunsupported by the record. The record does not contain either atranscript of the arbitration proceeding or a transcript of thehearing before the trial court on August 10, 2001, the date thatthe court granted the plaintiff's motion to bar the defendant fromrejecting the arbitration award and entered judgment thereon. Wehave no way of knowing the extent of the defendant's participationat the arbitration hearing or what evidence, if any, was presentedto the circuit court on the issue. What we do know from the recordis that the defendant was barred from testifying or offering anyevidence at the arbitration hearing by reason of her failure tocomply with the trial court's order of February 15, 2001, whichrequired that she respond to written discovery by March 15, 2001. The record also reflects that, although the defendant filed tardyanswers to interrogatories on March 29, 2001, approximately onemonth prior to the arbitration hearing, she made no attempt tovacate or modify the order of February 15, 2001, even though sheknew of its consequences upon her ability to testify or offerevidence at the hearing. It was not until after the arbitrationhearing that the defendant moved to vacate the February 15, 2001,order so as to allow her to testify at trial after she rejected thearbitration award. We believe that these facts might well have ledthe trial court to reasonably conclude that the defendant neverintended to participate in the arbitration proceeding in goodfaith. See Eichler v. Record Copy Services, 318 Ill. App. 3d 790,792, 742 N.E.2d 1245 (2000). In any case, by failing to furnish uswith either a transcript of the hearing before the trial court onAugust 10, 2001, or a bystander's report of those proceedings dulycertified in accordance with Supreme Court Rule 323(c), thedefendant has not provided a sufficiently complete record tosupport her claim of error on this issue. The record in this casedoes not inform us as to the evidence presented to the trial courtin support of the plaintiff's motion to bar the defendant fromrejecting the arbitration award or the basis upon which the courtgranted the motion. As a consequence, we must presume that thetrial court's order was supported by a sufficient factual basis,was in conformity with the law, and did not constitute an abuse ofdiscretion. Foutch, 99 Ill. 2d at 392.

The defendant also argues that her constitutional right to atrial by jury was violated when the trial court entered judgment onthe arbitration award after barring her rejection thereof. If, bythis argument, the defendant is contending that the trial courtabused its discretion in failing to vacate its February 15, 2001,order to permit her to testify at trial and in granting theplaintiff's motion to bar her from rejecting the arbitration award, and, as a result, violated her right to a trial by jury, we rejectthe argument for the reasons stated earlier. We also reject theargument if the defendant is asserting that the provisions ofSupreme Court Rule 91, which permit a trial court to bar a litigantfrom rejecting an arbitration award, are in themselvesunconstitutional. The same argument has been rejected by thiscourt when addressed to the trial court's ability to bar arejection of an arbitration award pursuant to Supreme Court Rule90(g) (166 Ill. 2d R. 90(g)) by reason of a party's failure tocomply with a Supreme Court Rule 237(b) notice (166 Ill. 2d R.237(b)). Williams v. Dorsey, 273 Ill. App. 3d 893, 904-05, 652N.E.2d 1286 (1995); see also State Farm Insurance Co. v. Gebbie,288 Ill. App. 3d 640, 642, 681 N.E.2d 595 (1997). We can find nological basis for not applying that same rationale and rejectingthe argument when addressed to the provisions of Rule 91.

Finally, we address the defendant's argument that the trialcourt erred when, on May 2, 2002, it modified its judgment ofAugust 10, 2001, to provide that judgment was also entered in favorof Bower on the defendant's third-party complaint for contribution. The defendant argues that the circuit court was without authorityto modify the provisions of the arbitration award or grant reliefin addition to that awarded by the arbitrators. See Cruz v.Northwestern Chrysler Plymouth Sales, Inc., 179 Ill. 2d 271, 275,688 N.E.2d 653 (1997).

Supreme Court Rule 92(b) provides that an arbitration award"shall dispose of all claims for relief." 155 Ill. 2d R. 92(b). In this case, the arbitration award did not dispose of thedefendant's third-party complaint for contribution against Bower. Although the trial court is authorized to correct obvious andunambiguous errors in mathematics or language contained in anarbitration award (see 155 Ill. 2d R. 92(d)), it is not authorizedto modify any substantive provisions or grant additional relief(Cruz, 179 Ill. 2d at 275). Nevertheless, the trial court modifiedthe judgment that it entered on the arbitration award in favor ofthe plaintiff to also grant judgment in favor of Bower on thedefendant's third-party complaint. We are unable to find anyauthority for the trial court's action in this regard.

As justification for the modification, the motion filed by theplaintiff and Bower merely asserted that: "Since the arbitratorsawarded Plaintiff, Geico, the full amount of its subrogation claim,there could have been no finding of contributory negligence on thepart of Robert Bower." We would agree with the assertion if whatwas at issue was an affirmative defense grounded in allegations ofcontributory negligence. However, the defendant raised no suchdefense. Instead, she pled an action for contribution againstBower, the plaintiff's subrogor, and sought relief in the form ofa judgment against him.

Thus, the arbitrators did not dispose of the claim which thedefendant asserted against Bower in her third-party complaint, andwe can find no authority for the trial court's action in modifyingits judgment on the arbitration award to include a judgment infavor of Bower. Nonetheless, our analysis continues. As areviewing court, we may sustain the decision of a trial court onany grounds called for by the record, regardless of whether thetrial court relied upon those grounds and regardless of whether thetrial court's reasoning was correct. Leonardi v. Loyola Universityof Chicago, 168 Ill. 2d 83, 97, 658 N.E.2d 450 (1995).

When this court examined the initial briefs filed by theparties in this case, a question arose as to whether, under thecircumstances of this case, the defendant could ever maintain asuccessful contribution action against the plaintiff's subrogor,Bower. As a consequence, we ordered the parties to filesupplemental briefs addressed to the issue. Having reviewed thosebriefs and considering the factual context in which the defendant'scontribution claim was filed, we conclude that Bower was entitledto the entry of a judgment in his favor on the defendant's third-party complaint for contribution as a matter of law.

The plaintiff filed the instant action as subrogee of Bower,its insured. As such, the plaintiff could only enforce the rightswhich Bower possessed against the defendant (Continental CasualtyCo. v. Polk Brothers, Inc., 120 Ill. App. 3d 395, 396-97, 457N.E.2d 1271 (1983)) and its claim was subject to all defenses whichmight have been raised against Bower (see Intergovernmental RiskManagement v. O'Donnell, Wicklund, Pigozzi & Peterson Architects,Inc., 295 Ill. App. 3d 784, 800, 692 N.E.2d 739 (1998)). Putanother way, the plaintiff stepped into the shoes of Bower. As aconsequence, the defendant could have pled Bower's contributorynegligence as an affirmative defense to the plaintiff's claim. However, the defendant raised no such defense. Instead, she pledwhat purported to be a third-party complaint for contributionagainst Bower and sought relief in the form of a judgment againsthim. For the reasons which follow, we find that the facts allegedand admitted in the parties pleadings show that there is no issueof fact to be tried relating to the defendant's third-partycomplaint and that Bower is entitled to judgment as a matter oflaw.

"[W]here 2 or more persons are subject to liability in tortarising out of the same injury to person or property, or the samewrongful death, there is a right of contribution among them". 740ILCS 100/2(a) (West 1998). The basis for one's contributionliability rests on his liability in tort to the injured party. Hayes v. Mercy Hospital & Medical Center, 136 Ill. 2d 450, 457, 557N.E.2d 873 (1990). Consequently, a contribution action cannot bemaintained against a party who is not subject to liability in tort. Cornett v. Gromann Service Company-Retail, 227 Ill. App. 3d 148,153, 590 N.E.2d 1013 (1992).

The plaintiff brought the instant action as subrogee to therights of Bower, premised upon the defendant's alleged tortliability to Bower for damages to Bower's vehicle. Since Bowercannot, as a matter of law, be liable in tort to himself, he cannotbe liable in contribution to the defendant for damage to his ownproperty. Whatever contributory negligence that Bower may havebeen guilty of that proximately caused damage to his vehicle mightwell have been the basis for the defendant asserting an affirmativedefense against the plaintiff's claim, but it could never form thebasis of an action for contribution against Bower.

When, as in this case, a complaint fails to tender a triableissue of fact and is insufficient as a matter of law, judgment onthe pleadings is appropriate. See Pollack v. Marathon Oil Co., 34Ill. App. 3d 861, 867, 341 N.E.2d 101 (1976). The total failure ofa complaint to state a cause of action is a fundamental defectwhich may be raised at any time by any means, even for the firsttime on appeal. Foley v. Santa Fe Pacific Corp., 267 Ill. App. 3d555, 561, 641 N.E.2d 992 (1994). The defect cannot be waived(Morrison v. Forest Preserve District, 155 Ill. App. 3d 687, 689,508 N.E.2d 312 (1987)) and may be raised by the court sua sponte(Rhodes v. Mill Race Inn, Inc., 126 Ill. App. 3d 1024, 1028, 467N.E.2d 915 (1984)). We hold, therefore, that Bower was, as amatter of law, entitled to the entry of a judgment in his favor onthe defendant's third party complaint for contribution. Althoughwe are slow to dispose of a complaint on grounds not assertedbefore the trial court (see Geaslen v. Berkson, Gorov & Levin, Ltd.155 Ill. 2d 223, 230, 613 N.E.2d 702 (1993)), in a case such asthis one, where the parties have been afforded an opportunity tobrief the issue and the defect is not correctable, we believe thatour action is appropriate.

For the foregoing reasons, we affirm the judgment entered bythe circuit court in favor of the plaintiff on the award of thearbitrators and affirm the judgment entered in favor of Bower onthe defendant's third-party complaint for contribution.

Affirmed.

SOUTH, P.J., and HALL, J., concur.