No.07 L 1289 Appeal from the Circuit Court of Cook County Honorable James D. Egan, Judge Presiding.
The opinion of the court was delivered by: Justice Cahill
JUSTICE CAHILL delivered the opinion of the court: This is a permissive appeal under Supreme Court Rule 308 (155 Ill. 2d R. 308). Plaintiff David Skotticelli brought this action for personal injuries he sustained as a result of a fight with Pedro E. Diaz inside Tequila Roadhouse, a tavern owned and operated by defendant Club Misty, Inc. Plaintiff served Club Misty with a request to admit facts under Supreme Court Rule 216 (134 Ill. 2d R. 216). Club Misty responded, denying all requests. The response was signed by Club Misty's president, Matthew Schulte. Schulte had no personal knowledge of the matters in the request to admit but relied on representations made to him by Club Misty's attorney. Plaintiff moved to strike the response and deem the requests admitted. The circuit court granted the motion. Club Misty filed a motion to reconsider and for Supreme Court Rule 308 certification. The court denied Club Misty's motion to reconsider but in response to an affidavit filed by Club Misty's attorney, the trial court certified a question for review under Rule 308. The question certified by the trial court reads as follows:
"Where a trial court finds that a corporate defendant denied a request to admit, based on the lack of knowledge of the subject requests on the part of the corporate president, and the corporate president's lack of any of the investigation or inquiry on his own part, and where the corporation is out of business and had no employees at the time the requests were propounded, and the corporation asserts that its denials of the requests to admit were based on information learned by defense counsel from interviewing the prior employees of the corporation, can the trial court properly strike the corporation['s] denials of the requests to admit and deem the request to be admitted?"
Both parties agreed at oral argument that the critical part of the certified question is contained in the phrase "the corporation asserts that its denials of the requests to admit were based on information learned by defense counsel from interviewing the prior employees of the corporation." The admission by the parties that this language is the heart of the matter simplifies our reading of the certified question. A paraphrase that mischaracterizes the certified question in the appellee's brief is helpful also. The appellee asserts that "[a] Corporate Party Should be Sanctioned for Answering a Discovery Request Based on Unknown Information that was Obtained from an Investigation Carried Out by a Non-Corporate Party." Appellee's use of the word "unknown" and the phrase "a non-corporate party" is not accurate. If we omit the word "unknown" and replace the phrase "a non-corporate party" with "defense counsel," as given in the certified question, we are presented with the question of law the trial court faced: In responding to a Rule 216 request to admit, should the requests be deemed admitted when the denials required by Rule 216 are based not on personal knowledge of the party affiant, but on an investigation conducted by his attorney? The trial court answered the question "yes" and deemed the requests admitted as a sanction for failure to comply with Rule 216. We answer the question "no."
Plaintiff was injured inside Tequila Roadhouse on February 5, 2006, when Diaz punched him in the face. On April 16, 2007, plaintiff filed this action against Club Misty for negligence and violation of the Dramshop Act (235 ILCS 5/6-21 (West 2006)). Plaintiff claimed that Club Misty was negligent for failing to provide adequate security in Tequila Roadhouse and remove Diaz after it became apparent that he posed a threat to other patrons. Plaintiff's Dramshop claim alleged that Club Misty served alcohol to Diaz, who became intoxicated.
On August 28, 2007, plaintiff served Club Misty with a request to admit facts. Club Misty had ceased doing business and was no longer operating the Tequila Roadhouse, which shut down in May 2007. The request sought admission of facts relating to liability. If all facts were admitted, the issue of liability would be resolved in favor of plaintiff.
Club Misty responded on October 9, 2007, denying all requests. The response was signed by Club Misty's president, Matthew Schulte. Schulte was not present at the Tequila Roadhouse on the date of the incident and had no personal knowledge of the matters requested to be admitted. The case proceeded to discovery with Schulte and several former Tequila Roadhouse employees being deposed.
After discovery was completed, plaintiff filed a motion on April 23, 2009, to strike Club Misty's response and deem the requests admitted. Plaintiff claimed that Club Misty's answers failed to comply with Supreme Court Rule 216 (134 Ill. 2d R. 216) because Schulte acknowledged in his deposition testimony that he did not have personal knowledge of the factual circumstances surrounding the incident. Plaintiff argued that Schulte had a good-faith obligation to make a reasonable effort to secure the answers from persons and documents within his control or "[set] forth in detail the reasons why he [could not] truthfully admit or deny those matters." 134 Ill. 2d R. 216. Plaintiff maintained that "Schulte was clearly not in a position to deny or admit any of the items in Plaintiff's request" and was not "free to simply deny all of the factual requests without any basis."
Club Misty responded, arguing that its denials were "in harmony with the purpose of [Rule 216]." Club Misty claimed plaintiff was trying to circumvent the purpose of the rule by having certain allegations admitted and disposing of the case on a technicality rather than a trial on the merits. Club Misty pointed out that the deposition testimonies of occurrence witnesses confirmed the denials contained in its Rule 216 answer. In the alternative, Club Misty sought leave to modify its answers.
Plaintiff replied, reiterating that Schulte's failure to personally secure answers before responding to plaintiff's requests or disclose why he was unable to provide the answers amounted to a violation of the rule. Plaintiff also argued that there were no grounds for the court to grant Club Misty's request to modify its answers because Club Misty did not explain why it was originally unable to do so.
The trial court entered an order granting plaintiff's motion to strike Club Misty's answers, deeming the facts admitted. Club Misty filed a motion to reconsider that ruling and a motion for Rule 308 certification. In the motion to reconsider, Club Misty claimed that its Rule 216 denials were not based on Schulte's lack of knowledge but on the investigation conducted by its attorney, James L. Hodges. Club Misty maintained that this was in conformity with the law and Rule 216. In support of its argument, Club Misty attached the following affidavit:
"I, James L. Hodges, after being duly sworn on oath, depose and state as follows:
1. I am an attorney, and have been licensed to practice law in Illinois since 2002.
2. In 2007, I was practicing law as an associate with the Firm of L. Barrett Bodach and Assoc., in Chicago. I was the attorney principally responsible for representing Club ...