Attorneys Should Strictly Comply with Illinois Supreme Court Rule 216

Two recent Illinois Appellate Court decisions demonstrate the importance of strictly complying with the requirements of Illinois Supreme Court Rule 216 when responding to requests to admit. Moy v. Winsen Ng, 793 N.E.2d 919, 276 Ill.Dec. 160 (1st Dist. 2003), and Montalbano Builders, Inc. v. Rauschenberger, 794 N.E.2d 401, 276 Ill.Dec. 506 (3d Dist. 2003). The failure to do so may result in the requests being deemed admitted even when that was not the intention of the responding party.

In Moy v. Winsen Ng, 793 N.E.2d 919, 276 Ill.Dec. 160 (1st Dist. 2003), defendant argued that the trial court erred when it denied her motion to strike plaintiffs' answers to her request to admit facts pursuant to Supreme Court Rule 216. On July 28, 1999, defendant served her request to admit. On August 10, 1999, plaintiffs filed their answer to defendant's request to admit. The answer was not signed or sworn to. On that same date, plaintiffs filed another answer to the request to admit. However, this answer was signed and verified by plaintiffs' attorney but not by plaintiffs. On October 13, 1999, defendant filed a motion to strike plaintiffs' answer to her request to admit.

At the hearing on defendant's motion to strike on November 17, 1999, plaintiffs' attorney did not dispute that the copy of plaintiffs' answer to the request to admit sent to defendant's attorney was unsigned and unsworn to, but noted that he had filed the original, which he had signed and verified, with the circuit court. The trial court denied the motion to strike. On June 27, 2000, the trial court denied a motion in limine filed by defendant relating to the request to admit, but ordered plaintiffs to serve an additional copy of the request to admit, signed by "plaintiff", on defendant's attorney prior to trial.

The record reflected that another answer to the request to admit, file-stamped August 10, 1999, was filed. This one was signed by plaintiffs' attorney and verified by one of the plaintiffs. The proof of service states that it was served on July 3, 2000, on defendant's attorney, having been "previously served filed" on August 10, 2000.

On September 11, 2000, defendant filed a second motion in limine to strike plaintiffs' answer to the request to admit, filed on July 3, 2000. Defendant argued that plaintiffs had not shown "good cause" to allow them to serve their answer and that the documents still did not conform to the signing and sworn-to requirements of Rule 216. On September 16, 2000, defendant filed a third motion in limine acknowledging receipt of a copy of plaintiffs' answer, signed by plaintiffs' attorney and verified by one the plaintiffs, but again argued that the "good cause" requirement was not fulfilled by plaintiffs, that the answer contained untrue statements in regard to the filing and service of the answer and that the answer was not signed by all four of the plaintiffs. The trial court denied defendant's motions in limine and defendant appealed after the trial court entered a judgment against her.

On appeal, defendant argued that the trial court erred when it denied her motion to strike plaintiffs' answer to her request to admit. The appellate court agreed and reversed the trial court's rulings and ordered a new trial. Moy, 793 N.E.2d at 925, 276 Ill.Dec. at 166. The court further ordered that on remand the facts contained in defendant's request to admit will be deemed admitted. Id. at 926, 276 Ill.Dec. at 167.

The court recognized that the failure to file a timely response to a request to admit facts - including the "ultimate" facts in the case - in accordance with Rule 216(c) results in the admission of those facts. Id. at 923-924, 276 Ill.Dec. at 164-165. A response denying the facts that is neither timely nor sworn fails to comply with the rule. Id. at 924, 276 Ill.Dec. at 165. In addition, the court concluded that the responding party's response to the request to admit should be signed and sworn to by the responding party, not the party's attorney, and that the responding party is required to serve the sworn statement denying the facts on the party requesting the admission in addition to filing it with the clerk of the circuit court, pursuant to Cook County Circuit Court Rule 3.1(c). Id. Thus, the court concluded that plaintiffs' filing of their answer to defendant's Rule 216 request with the circuit court but serving an unsigned and unsworn-to copy on defendant's attorney failed to satisfy the requirements of either Rule 216(c) or Circuit Court Rule 3.1(c). Id. at 925, 276 Ill.Dec. at 166. The court stated its holding as follows:

We hold, therefore, that Rule 216(c) requires that the party responding to the Rule 216 request must sign the answer and provide the sworn-to statement and that the signed and sworn-to copy of the answer served on the requesting party must be signed and sworn to by the party. The signature of and verification by the party's attorney on the answer to Rule 216 request instead of the party's signature does not comply with Rule 216(c).

We further reiterate that filing a signed and sworn-to original with the circuit court but serving an unsigned and unsworn-to copy of the answers to a Rule 216 request to admit does not comply with either Rule 216(c) or Rule 3.1(c). Id.

Plaintiffs argued on appeal that, prior to trial but after the expiration of the 28-day requirement of Rule 216, they filed an answer to the request to admit, which was sworn to by one of plaintiffs. However, the court determined that the answer signed by the attorney violated Rule 216. Id. Furthermore, the court concluded that even if it disregarded the fact that the attorney signed the answer rather than plaintiffs, they failed to show "good cause" for the late filing. Id. The court pointed out that although the trial court has discretion to permit a party to file a response to a request for admission after the 28-day time limit upon the showing of "good cause" for an extension of time, a lack of prejudice to the opposing party does not constitute "good cause." Id. at 926,276 Ill.Dec. at 167.

Plaintiffs also argued on appeal that defendant waived any right to rely on the admissions contained in their answer to her Rule 216 request because, at trial, she introduced evidence on the issues involved in her Rule 216 Request. The court recognized that where facts have been admitted pursuant to a Rule 216 request and the party presents evidence at trial to prove those facts, the admissions are waived, and the party must rely on the strength of the evidence produced at trial. Id. However, the court concluded that it would be unjust to apply that rule where the trial court erroneously has allowed an untimely and improper response to the request to admit facts, since the party requesting the admissions is left with little choice but to present evidence at trial. Id.

Finally, plaintiffs argued on appeal that defendant's request to admit was improper in form and scope and, therefore, she should be barred from using any of the admissions. However, the court concluded that plaintiffs failed to object to the request to admit as required by Rule 216 and therefore waived any objection to the request. Id.

In Montalbano Builders, Inc. v. Rauschenberger, 794 N.E.2d 401, 276 Ill.Dec. 506 (3d Dist. 2003), defendants sent a request to admit certain facts to plaintiff on November 9, 2000, and filed a proof of service with the court on November 16, 2000. Two months later, on January 12, 2001, after plaintiff failed to timely respond to the request, defendants filed a motion for partial summary judgment based on plaintiff's failure to respond to the request to admit. On February 9, 2001, plaintiff filed a motion to bar the use of the alleged admitted facts. Plaintiff's attorney argued that he did not receive the request to admit in the mail. The motion also requested an extension of time to respond to the request to admit. On May 18, 2001, plaintiff filed another motion for leave to file a response to defendants' request to admit. Plaintiff's attorney argued that he did not learn of defendants' request to admit until January 12, 2001, when he received defendants' motion for partial summary judgment. The trial court denied plaintiff's motions and granted partial summary judgment for defendants. The facts deemed admitted served as the basis for the trial court granting partial summary judgment in favor of defendants. Plaintiff then appealed the denial of the motion for leave to file a late response and the award of partial summary judgment.

The appellate court initially noted that, despite plaintiff's protestations to the contrary, there is a presumption that since the request was mailed, it was received four days after the date that the notice of service was filed. Id. at 404, 276 Ill.Dec. at 509. The court concluded that the plaintiff had not shown due diligence in dealing with the problem when he waited until May 2001 to file for leave to file a late response. Id. at 405, 276 Ill.Dec. at 510. The court noted that plaintiff should have immediately attempted to remedy the problem when it received the defendant's motion for partial summary judgment in January of 2001. Id. The court determined that plaintiff failed to establish a legitimate reason for waiting for four months to bring the problem to the court's attention. Id. The court held that, in light of the length of the delay and the failure to give an adequate explanation, there was no abuse of discretion in the trial court's denial of plaintiff's motion. Id.