Appeal from the Circuit Court for the 12th Judicial Circuit, Will County, Illinois No. 99-MR-522 Honorable Gilbert Niznik, Judge, Presiding
The opinion of the court was delivered by: Presiding Justice McDADE
In this contract dispute, the plaintiff, Montalbano Builders, complained that defendants, David Rauschenberger and Rauschenberger Contractors, failed to complete work they had contracted to do. Rauschenberger counterclaimed for payment. During discovery defendants sought plaintiff's admission to certain facts. Plaintiff failed to timely respond, claiming not to have received the discovery request.
Plaintiff's motion to tender a response more than five months after the service of the request to admit was denied. The facts deemed to have been admitted served as the basis for the court's order granting partial summary judgment in favor of defendants. Plaintiff appeals the denial of the motion for leave to file a late response and the award of partial summary judgment. We affirm.
The plaintiff, Montalbano Builders, alleges that the defendants, David Rauschenberger and Rauschenberger Contractors (Rauschenberger or defendants) failed to satisfactorily complete work for which Montalbano had contracted. Specifically, Montalbano alleged that it had contracted with Rauschenberger for the completion of work on property that was to be conveyed as improved to the Bolingbrook Park District. Under the agreement, Rauschenberger committed to grade and seed a detention basin on the property. Montalbano alleged in the complaint that the work was not satisfactorily completed and sought damages in the form of compensation for money paid to have the work completed by another firm.
In response, Rauschenberger filed a five-count counterclaim. Count I alleged that Rauschenberger completed the detention pond and that Montalbano was in breach of the contract by refusing to pay $95,360 due for material and labor. Count II sought to enforce a mechanic's lien on the property. Count III alleged that Montalbano breached a contract with Rauschenberger by failing to pay $53,225.68 for improvements done by defendants in a subdivision owned by Montalbano. Count IV alleged that Montalbano refused to pay for a timber wall constructed at its request. The counterclaim alleged that Montalbano owed $11,500 for the wall and $500 for various mowing duties. In count V Rauschenberger asserted that Montalbano owed $3,024.38 for mowing work on various Montalbano properties. Count VI complained of intentional interference with a prospective business advantage. Montalbano subsequently filed an answer, in which it denied the allegations of the counterclaim.
On November 16, 2000, Rauschenberger's attorney filed proof with the court of service of a document entitled "Request to Admit Fact Pursuant to Supreme Court Rule 216" on Montalbano's attorney. Approximately two months passed during which Rauschenberger did not receive a response to the request to admit. On January 12, 2001, Rauschenberger filed a motion for partial summary judgment, using as a basis the facts that were admitted by Montalbano's failure to respond to the request for admission.
Montalbano filed a motion to bar on February 9, 2001, in which it sought to prevent the use of certain evidence obtained during discovery for the purpose of supporting Rauschenberger's motion for partial summary judgment. The motion also sought an extension of the deadline for the end of written discovery and reported that Montalbano had not received the request for admission that was mailed on November 9, but it did not elaborate on the point.
On May 18 2001, Montalbano filed a motion for leave to file a response to the request for admission. In the motion, Montalbano claimed not to have received the request sent on November 9, 2000, until the motion for partial summary judgment was received on January 12, 2001. It claimed that its non-receipt of the request was good cause for allowing an extension of the deadline to file a response.
The trial court denied the motion for leave to file a response and considered defendants' motion for partial summary judgment. The court ruled in favor of Rauschenberger's claims on counts I, III, IV and V. The court then dismissed Montalbano's claims on the basis of res judicata.
Montalbano argues on appeal that the trial court abused its discretion when it denied leave to respond to the request for admission. It also argues that the request was improper, since it was not a request for the admission of facts but, rather, was legal conclusion. Finally, the plaintiff claims that the trial court erred in granting summary judgment in favor of the defendants on counts I, III, IV, and V of the counter-complaint.