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F.j. Pechman, Inc. v. Oldham

OPINION FILED AUGUST 1, 1980.

F.J. PECHMAN, INC., PLAINTIFF-APPELLANT,

v.

KITTY OLDHAM, D/B/A CARDINAL STUDIO, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Massac County; the Hon. ARLIE O. BOSWELL, JR., Judge, presiding.

MR. JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

Plaintiff, F.J. Pechman, Inc., brought an action in the Circuit Court of Massac County to recover monies alleged to be due and owing to it by defendant, Kitty Oldham, doing business as Cardinal Studios. The failure of plaintiff to provide a timely response to certain requests to admit facts prompted the trial court to grant summary judgment in favor of defendant. Plaintiff appeals from the order granting summary judgment.

Plaintiff raises the following issues on appeal: (1) whether the requests to admit facts required plaintiff to state conclusions rather than facts; (2) whether the requests to admit facts concerned matters not in controversy; (3) whether the trial court erred in granting summary judgment; and (4) whether summary judgment constituted an improper sanction under Supreme Court Rule 219(c) for failure to respond to the requests to admit facts.

On April 15, 1978, plaintiff filed a verified complaint alleging that defendant was indebted to it in the sum of $3,402.29 for merchandise and services that it alleged to have furnished to defendant after allowances for all just credits due defendant. Defendant's answer denied all material allegations pertaining to plaintiff's claim and asserted that it was not entitled to the relief sought.

A request to admit facts together with proof of service was filed by defendant on February 6, 1979, which states as follows:

"1. That after the allowance unto the Defendant of all just credits there remains nothing due and owing unto Plaintiff from Defendant.

2. That all claims against Defendant by Plaintiff have been fully paid and satisfied."

In a response filed March 19, 1979, plaintiff denied each of defendant's requests to admit facts. Moreover, the response contained no objection to either the form or the substance of the requested admissions. The following day defendant filed a motion for summary judgment. Plaintiff filed no counteraffidavits in response to the motion.

At the conclusion of the hearing on the motion, the trial court found as follows:

"1. That this Court has jurisdiction of the parties hereto and the subject matter hereof;

2. That the Plaintiff failed to respond to the Defendant's Request to Admit Facts within the twenty-eight day period set forth by Supreme Court Rule 216(c);

3. That the Plaintiff's Response to Defendant's Request to Admit Facts, even if the same had been timely filed, was not sufficient to constitute a sworn statement pursuant to Supreme Court Rule 216(c);

4. That by reason of Plaintiff's failure to make any response to Defendant's Request to Admit Facts within 28 days after service thereof, all matters set forth in said Request are admitted by Plaintiff, the same being relevant facts;

5. That the pleadings, affidavits, and admissions on file, show that there is no genuine issue ...


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