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05/30/97 AMY K. SCHWALB v. CHRISTOPHER L. WOOD

May 30, 1997

AMY K. SCHWALB, PLAINTIFF-APPELLANT,
v.
CHRISTOPHER L. WOOD, DEFENDANT-APPELLEE.



Appeal from the Circuit Court for the 10th Judicial Circuit, Peoria County, Illinois. No. 95--L--277. Honorable John A. Barra, Judge, Presiding.

Released for Publication June 30, 1997.

Present - Honorable Kent Slater, Justice, Honorable Thomas J. Homer, Justice, Honorable Peg Breslin, Justice. Justice Breslin delivered the opinion of the court. Homer and Slater, JJ., concur.

The opinion of the court was delivered by: Breslin

The Honorable Justice BRESLIN delivered the opinion of the court:

Plaintiff Amy Schwalb filed the instant complaint against defendant Christopher Wood alleging that Wood breached his promise to marry her. The trial court found that Amy failed to comply with the notice requirements of section 4 of the Breach of Promise Act (Act), 740 ILCS 15/4 (West 1994) because her notice failed to include the exact date on which the promise to marry was made. In addition, the court denied Amy's motion for an extension of time to file a response to a request to admit. Amy appeals both rulings. We hold that Amy substantially complied with the notice requirements of the Act by including the month and year during which the promise to marry was made. We also hold that the trial court did not abuse its discretion by denying her motion for an extension to file her request to admit response. Accordingly, we affirm in part, reverse in part and remand.

FACTS

Christopher and Amy were engaged to be married and set a wedding date for October 29, 1994. Although the parties do not dispute that they were engaged, Christopher maintains that the promise to marry was made in December 1993 while Amy claims it was made in September 1993. Seven days before the wedding, Christopher allegedly broke off the engagement. Two months later, Amy served Christopher with notice that she intended to file a complaint against him to recover her losses. The notice stated that the couple entered into a promise to marry in September 1993 and that due to Christopher's breach of that promise, Amy incurred over $25,000 in damages. Thereafter, Amy filed the instant complaint.

Christopher served Amy's attorney with a request to admit on April 16, 1996. However, Amy's attorney was unable to contact her. Because he had not received a response to the request to admit within the 28 day period required by Supreme Court Rule 216(c), 134 Ill. 2d R. 216(c), Christopher filed a motion for summary judgment on May 20. On the following day, Amy contacted her attorney, and he filed an unverified response to the request to admit. On July 15, nine weeks after the response was due, Amy filed a verified response to the request to admit and a motion for extension of time to respond. The trial court granted Christopher's motion to strike the unverified response and denied Amy's motion for an extension of time to file the response.

The court also found that Amy was unable to establish when the breach occurred, and thus, was unable to establish that notice was served on Christopher within the 90-day time limit provided in the Act. See 740 ILCS 15/4 (West 1994). Accordingly, the court granted Christopher's motion for summary judgment. But, in response to Amy's motion to reconsider, the court found that Amy had established that notice was given within 90 days of the breach. Nevertheless, the court found that Christopher was entitled to summary judgment because Amy's notice did not include the exact date on which the promise to marry was made.

ANALYSIS

The first issue on appeal is whether the notice required by section 4 of the Act must identify the exact date on which the promise to marry was made.

As a prerequisite to filing a cause of action for breach of promise to marry, section 4 of the Act requires the plaintiff to send a written notice to the defendant. The notice must include, among other things, "the date upon which the promise or agreement to marry was made ***." 740 ILCS 15/4 (West 1994). If the plaintiff fails to comply with the notice requirement, the suit must be dismissed. 740 ILCS 15/5 (West 1994).

Although no court has specifically addressed the notice requirement in the Act, many courts have construed a similar statutory notice requirement found in the Tort Immunity Act, Ill. Rev. Stat. 1985, ch. 85, pars. 8-102, 103. See, e.g., Carroll v. Chicago Housing Authority, 155 Ill. App. 3d 710, 508 N.E.2d 285, 108 Ill. Dec. 124 (1987). These courts have held that the omission of a necessary element from the notice requires dismissal, but once an element is furnished, the court must take a liberal approach to its sufficiency. Carroll, 155 Ill. App. 3d at 712, 508 N.E.2d at 286; Smith v. City of Chicago, 92 Ill. App. 3d 247, 249-50, 416 N.E.2d 20, 21-22, 48 Ill. Dec. 125 (1980). The notice is sufficient if the particular element is reasonably sufficient to fulfill the requirements of the statute and if the other party has not been misled or prejudiced thereby. Carroll, 155 Ill. App. 3d at 712, 508 N.E.2d at 286; Smith, 92 Ill. App. 3d at 250, 416 N.E.2d at 22. Because the notice provision in the Tort Immunity Act is virtually identical to the notice provision at issue in the case at bar, the cases construing the Tort Immunity Act should be applied. See Camp v. Chicago Transit Authority, 82 Ill. App. 3d 1107, 403 N.E.2d 704, 38 Ill. Dec. 473 (1980).

Christopher claims that the cases construing the notice requirements of the Tort Immunity Act are inapplicable because the Breach of Promise Act contains an express statement that the purpose of the Act is to limit the damages recoverable in such cases. This argument is unpersuasive, however, because the Tort Immunity Act contains an express statement that its purpose is to limit the liability of public entities and public employees. See 745 ILCS 10/1-101.1(a) (West 1994) ("The purpose of this Act is to protect local public entities and public employees from liability ***."). Thus, since there is no ...


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