Daleanes v. Board of Educ. of Benjamin Elementary School Dist. 25, DuPage County, 82-1019

• Citation: 75 Ill.Dec. 823,457 N.E.2d 1382,120 Ill.App.3d 505
• Decision Date: 27 December 1983
• Docket Number: No. 82-1019,82-1019
• Parties: , 75 Ill.Dec. 823, 15 Ed. Law Rep. 484 Thomas DALEANES, Plaintiff-Appellant, v. BOARD OF EDUCATION OF BENJAMIN ELEMENTARY SCHOOL DISTRICT 25, DuPAGE COUNTY, Illinois, and District 25, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1382

457 N.E.2d 1382

120 Ill.App.3d 505, 75 Ill.Dec. 823,

15 Ed. Law Rep. 484

Thomas DALEANES, Plaintiff-Appellant, v. BOARD OF EDUCATION OF BENJAMIN ELEMENTARY SCHOOL DISTRICT 25, DuPAGE COUNTY, Illinois, and District 25 Defendants-Appellees.

No. 82-1019.

Appellate Court of Illinois Second District.

Dec. 27, 1983.

Fawell, James & Brooks, Gerald J. Brooks, Naperville, for plaintiff-appellant.

Scariano Kula & Assoc., David P. Kula, Chicago Heights, for defendants-appellees.

LINDBERG, Justice.

Plaintiff, Thomas Daleanes, a school superintendent for defendant Board of Education of Benjamin Elementary School District 25 (hereinafter "the board"), appeals the summary judgment of the circuit court of DuPage County against his action in which he claimed that he was improperly dismissed from his employment by the board. Because we view the board's conduct to constitute a valid nonrenewal of Daleanes' contract, we affirm.

In February 1981, Daleanes was employed under contract as the superintendent of schools by the board. At its regularly scheduled meeting on February 16, 1981, the board unanimously passed a resolution that contained the following declarations:

"Section 1: That this Board of Education hereby determines that Thomas Daleanes shall not be reemployed as superintendent of this School District for the next ensuing school term, and accordingly that the present contract of employment of Thomas Daleanes shall terminate at the close of the present school term.

"Section 2: That the President and Secretary of the Board of Education are hereby authorized and directed to give Thomas Daleanes notice of this Board's decision not to re-employe said superintendent for the next ensuing school term which shall be substantially in the form of Exhibit 1 attached hereto and made a part hereof.

"Section 3: That the President and Secretary of this Board of Education are hereby authorized and directed to give Thomas Daleanes a specific Bill of Particulars in connection with the nonrenewal of his contract and Mr. Daleanes may request a closed-session hearing within 10 days after receipt of such notice.

"Section 4: This resolution shall be in full force and effect from and after its adoption."

The Board, by its president and secretary, subsequently served Daleanes with a letter dated February 16, 1981, stating the following:

"You are hereby notified that the Board of Education of Benjamin School District No. 25, DuPage County, Illinois, have decided it will not re-employ you as superintendent of this School District for the ensuing school term, and your contract of employment will therefore terminate at the close of the present school term.

"The specific reasons for the non-renewal of your contract are set out in the attached Exhibit A. Within 10 days you may request a closed-session hearing on this dismissal at which time you have the privilege of presenting evidence, witnesses and defenses on the grounds for dismissal."

Simultaneously with the letter, Daleanes received a four-page document entitled "Bill of Particulars," also dated February 16, 1981, and setting forth 30 reasons for Daleanes' dismissal. At its next regular meeting on March 16, 1981, the board approved its official minutes of the February 16 meeting. Those minutes contained the quoted resolution and letter, but did not include the Bill of Particulars.

Daleanes formally requested a closed-session hearing on the subject of his nonrenewal on February 24, 1981. The board subsequently announced that it would hold a special closed meeting on March 6, 1981, with "Consideration of Employment of a Superintendent" as the sole agendum. The closed-session hearing on Daleanes' nonrenewal was held on April 7 and 15 and May 1, 1981. On May 11, 1981, the board by resolution affirmed its determination not to renew Daleanes' contract. Although it did strike 13 of the causes enumerated in the Bill of Particulars, the board's affirmation was based upon the proof of the remaining 17 enumerated causes.

This action was initiated by Daleanes on May 8, 1981, with a complaint which sought declaratory and injunctive relief and which was amended to seek contract damages, all in redress for the board's allegedly invalid decision not to renew his contract. The procedural history of this action in the trial court has been long and complex and need not be detailed here. Daleanes notes, however, that the dispute over his employment has also given rise to a separate action in the United States District Court for the Northern District of Illinois (No. 82 C 214) and an interlocutory appeal from the present action Daleanes v. Board of Education, 106 Ill.App.3d 1157, 64 Ill.Dec. 521, 439 N.E.2d 1329 (1982) which this court dismissed for lack of jurisdiction. Neither the federal court action nor the previous appeal to this court is relevant to the issues raised in this appeal. On November 22, 1982, the trial court granted summary judgment in the board's favor, from which Daleanes brings this timely appeal.

We first address a contention by Daleanes that the trial court erred in permitting the board to file a response to his Notice to Admit Facts after the deadline for such response provided in Supreme Court Rule 216 (73 Ill.2d R. 216). Although the notice had been filed on January 29, 1982, the board did not seek leave to respond until after Daleanes' April 13, 1982, motion for judgment on the pleadings, which relied upon the requested admissions. The trial court first denied the board leave to respond, but, upon the board's motion to reconsider, leave was granted. Rule 216(c) provides that requested admissions are admitted unless response is given within 28 days. 73 Ill.2d R. 216(c).

Although some courts have declined to relieve a tardy litigant from being bound by his failure to respond within the 28-day period (see City of Champaign v. Roseman (1958), 15 Ill.2d 363, 155 N.E.2d 34; Banks v. United Insurance Co. of America (1975), 28 Ill.App.3d 60, 328 N.E.2d 167; Crum v. Golf Oil Corp. (1973), 12 Ill.App.3d 988, 299 N.E.2d 820), a court may in its discretion permit a tardy response to a request to admit. (Bluestein v. Upjohn Co. (1981), 102 Ill.App.3d 672, 58 Ill.Dec. 548, 430 N.E.2d 580; Redmond v. Central Community Hospital (1978), 65 Ill.App.3d 669, 21 Ill.Dec. 801, 382 N.E.2d 95.) The Redmond court suggested that permitting the filing of a late response is permissible where the failure to respond in time is the result of circumstances beyond the control of the litigant. (65 Ill.App.3d 669, 678, 21 Ill.Dec. 801, 808, 382 N.E.2d 95, 102.) More generally, the Supreme Court Rules empower a trial court to extend any time limit created by the rules "for good cause shown." 73 Ill.2d R. 183.

The board's excuse in this case was that it was in the process of changing attorneys. Daleanes sent his request to admit to the board's then-attorneys, Leonard Seraphin and E. Allan Kovar, on January 29, 1982. According to the board's present attorneys, Scariano, Kula & Associates, they examined the court file during the first week of February 1982, immediately after they were asked by the board to handle this case, and found no request to admit because of an alleged gap in the time between the official filing of the document and its appearance in the court files. Because of a fee dispute between the board and its former attorneys, Scariano, Kula & Associates did not receive the client file from the former attorneys before becoming aware of the request to admit for the first time through Daleanes' motion for judgment on the pleadings. In a supporting affidavit, attorney David Kula stated that his firm had no knowledge of the request to admit until April 16, 1982, and that he had on several occasions requested the files on the case from the board's former counsel without success.

In Bluestein v. Upjohn Co. (1981), 102 Ill.App.3d 672, 58 Ill.Dec. 548, 430 N.E.2d 580, the trial court's allowance of a late response was affirmed where the facts in the requested admissions involved the central issue of proximate cause and the court stated that it did not choose to deny a party a jury trial due to his lawyer's carelessness. Here, the most significant requested admission, that the board did not vote on the Bill of Particulars later presented to Daleanes, involves a fact question central to the dispute. While the board or its new attorneys might possibly have taken some different action to avoid their ignorance of pending judicial matters, confusion resulting from the changing of attorneys is an understandable phenomenon. Moreover, Daleanes fails to demonstrate significant prejudice resulting from the delay. Under these circumstances, the trial court could properly have found "good cause" to permit a late response to the request to admit.

Daleanes principally challenges the procedure by which the board dismissed him. He first contends that the board failed to comply with the School Code (Ill.Rev.Stat.1979, ch. 122, pars. 1-1 et seq.) in its determination not to renew his contract by delegating its nondelegable duty to consider the specific reasons for the nonrenewal. Daleanes argues that the School Code requires the board as a whole to consider those reasons and that an examination of the official board records shows an improper delegation of that duty. Daleanes further maintains that, because the board's official record is the only proper evidence on the question of delegation, the board erred in considering extrinsic evidence.

The relevant sections of the School Code provide in pertinent part as follows:

" § 10-21. Additional duties of board. Boards of education in addition to the duties enumerated above shall have the additional duties enumerated in sections 10-21.1 through 10-21.6.

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" § 10-21.4. Superintendent--Duties. * * * [T]o employ a superintendent who shall have charge of the administration of the schools under the direction of the board of education. * * *

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