Appeal from the Circuit Court of LaSalle County, Illinois. No. 93-CH-10. Honorable Robert L. Carter, Judge, Presiding
Released for Publication June 1, 1994. Petition for Leave to Appeal Allowed October 6, 1994.
Present - Honorable Kent Slater, Presiding Justice, Honorable Peg Breslin, Justice, Honorable Tom M. Lytton, Justice
The opinion of the court was delivered by: Slater
PRESIDING JUSTICE SLATER delivered the opinion of the court:
Faith Dicke (hereinafter defendant) filed an application for leave to appeal pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308). We granted leave to appeal to consider whether a trial court has discretion under Supreme Court Rule 216 (134 Ill. 2d R. 216) to allow a party to file a late response to a request to admit.
On January 21, 1993, plaintiff filed a two-count complaint alleging that defendant breached her fiduciary duties as trustee of the Leonard E. Dicke Trust and that she also breached a purported settlement agreement. On May 12, 1993, plaintiff filed a request for admission of facts and genuineness of documents pursuant to Rule 216. This request to admit was received in the office of defendant's attorneys on May 13. Defendant filed an unverified response on June 14, and plaintiff filed a motion to strike the response because it was both untimely and unverified. Thereafter, on June 24, defendant filed a motion for leave to file a late response, and plaintiff objected. Following a hearing, the trial court denied defendant's motion and it later made the requisite finding under Rule 308 to allow defendant to seek an interlocutory appeal.
Rule 216 provides in part:
"(c) Admission in the Absence of Denial. Each of the matters of fact and the genuineness of each document of which admission is requested is admitted unless, within 28 days after service thereof, the party to whom the request is directed serves upon the party requesting the admission either (1) a sworn statement denying specifically the matters of which admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters or (2) written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in whole or in part." 134 Ill. 2d R. 216(c).
In Johannsen v. General Foods Corp. (1986), 146 Ill. App. 3d 296, 496 N.E.2d 544, 99 Ill. Dec. 851, defendant responded to plaintiff's request to admit with an unverified answer that was 22 days late. The trial court granted plaintiff's motion to strike the response and this court granted leave to appeal to address the following question:
"Whether or not it is an abuse of the Court's discretion to refuse to allow a late filing of a response to a Request to Admit Facts which was neither signed under oath nor by a party * * * and where there is no specific showing that the late filing results in prejudice or inJustice to the party seeking the admissions." Johannsen, 146 Ill. App. 3d at 298, 496 N.E.2d at 545.
At the outset of our analysis in Johannsen, we noted that there appeared to be disagreement between the districts of the appellate court with regard to the application of Rule 216. We noted that the second district and two divisions of the first district had held that a trial court has discretion to relieve a tardy litigant from being bound by a failure to respond within 28 days. In contrast, the third, fifth and two divisions of the first district had consistently held "that a litigant's failure to file a timely response under Rule 216(c) results inautomatic admission of the facts as stated in the request." Johannsen, 146 Ill. App. 3d at 299, 496 N.E.2d at 546.
It appears that this latter statement has created the impression, shared by the parties here as well as by some courts (see, e.g., Smoot v. Knott (1990), 200 Ill. App. 3d 1082, 558 N.E.2d 794, 146 Ill. Dec. 831) and commentators (see Garner & Wolfe, Late Responses to Requests to Admit: When Should Courts Allow Them?, 78 ILL. B.J. 502 (1990)) that Johannsen held that a trial court has no discretion to allow a late response to a request to admit. While such a view is understandable in light of Johannsen's reference to automatic admission of facts under Rule 216, it is clear that the holding of Johannsen was much narrower and implicitly recognized the trial court's discretion. "On these facts, the trial court did not abuse its discretion in applying the rule as it did, granting plaintiff's motion to strike defendant's response and deeming the facts requested as admitted." (Emphasis added.) Johannsen, 146 Ill. App. 3d at 301, 496 N.E.2d at 547.
Indeed, a close reading of Johannsen reveals that this court expressly declined to consider whether a trial court might, under other circumstances, properly allow a late response. "Even were we to agree that the broad discretion of the trial court could be invoked for filing a tardy response pursuant to Supreme Court Rule 183 [citations], the case before us today would not present a suitable setting for so declaring." ( Johannsen, 146 Ill. App. 3d at 300, 496 N.E.2d at 547.) That "suitable setting" is presented by this case, and we ...