Glasco v. Marony

• Decision Date: 20 April 2004
• Docket Number: No. 5-03-0135.,5-03-0135.
• Citation: 283 Ill.Dec. 819,347 Ill. App.3d 1069,808 N.E.2d 1107
• Parties: Coleen R. GLASCO, Plaintiff-Appellant, v. George MARONY and Joseph Goodge, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

808 N.E.2d 1107

347 Ill. App.3d 1069

283 Ill.Dec. 819

Coleen R. GLASCO, Plaintiff-Appellant, v. George MARONY and Joseph Goodge, Defendants-Appellees.

No. 5-03-0135.

Appellate Court of Illinois, Fifth District.

April 20, 2004.

Thomas W. Moyer, Carbondale, for Appellant.

Edward S. Bott, David W. Ybarra, Greensfelder, Hemker & Gale, Belleville, for Appellees.

Justice WELCH delivered the opinion of the court:

The plaintiff, Coleen R. Glasco, filed her complaint against the defendants, George Marony and Joseph Goodge, and alleged that the defendants had violated the AIDS Confidentiality Act (the Act) (410 ILCS 305/1 et seq. (West 2000)). The defendants served their request for admissions on the plaintiff, and the plaintiff did not deny or object to the requests within the rule's time limit (134 Ill.2d R. 216). The circuit court denied the plaintiff's motion to file late answers to the defendants' request for admissions and granted the defendants' motion for a summary judgment. For the reasons that follow, we affirm the ruling of the trial court.

On September 13, 2001, the plaintiff filed her complaint against the defendants and alleged that they had wrongfully disclosed her confidential HIV report in violation of the Act. The plaintiff alleged that the defendant Goodge, a lab employee of Memorial Hospital of Carbondale, had accessed the plaintiff's confidential HIV report and provided a copy of the report to the defendant Marony and that the defendant Marony had released the plaintiff's HIV test results to five additional persons. The plaintiff sought damages of $5,000 for each intentional or reckless disclosure, in addition to attorney fees. See 410 ILCS 305/13 (West 2000).

On February 1, 2002, the defendants filed their request for admissions, along with their certificate of service, indicating that they had mailed the request to the plaintiff's attorney on January 28, 2002. The defendants requested that the plaintiff admit the following facts:

1. The plaintiff requested that Marti Burrows perform an HIV test on the plaintiff without the knowledge or without an order of any physician at Memorial Hospital of Carbondale, Illinois.

2. The plaintiff did not request that the test be performed by any physician.

3. No physician ordered the HIV test performed on the plaintiff.

4. The plaintiff obtained a negative HIV test result from the hospital laboratory.

5. The plaintiff changed the negative test result of her HIV test to reflect a positive test result.

6. The plaintiff or the plaintiff's husband mailed the altered HIV test result to Dr. Guillen.

7. The plaintiff had not requested that the HIV test be performed anonymously by using a coded system that does not link individual identity with the request or the result.

8. George Marony was an employee of Memorial Hospital of Carbondale on October 28,1999.

9. Joseph Goodge was an employee of Memorial Hospital of Carbondale on October 28,1999.

10. The plaintiff, while employed at Memorial Hospital of Carbondale, on October 28, 1999, was involved in direct patient care.

11. The plaintiff ordered the HIV test for herself.

On August 22, 2002, the defendants filed their motion for a summary judgment. In their motion, the defendants asserted that the plaintiff had failed to respond to the defendants' request for admissions and that, as a result, the facts in the defendants' request for admissions were deemed admitted. The defendants concluded that because the plaintiff had not obtained the HIV test results by the procedures outlined in the Act and because the plaintiff had voluntarily disclosed her results, the plaintiff could not claim protection under the Act and, therefore, the defendants were entitled to a summary judgment.

On September 5, 2002, the plaintiff filed a motion to allow her to answer the defendants' request for admissions. She asserted that the plaintiff's attorney had been unaware of and unable to locate the request for admissions that had been sent to him.

On October 1, 2002, the circuit court denied the plaintiff's motion to allow the plaintiff to answer the defendants' request for admissions. On the same day, noting that the plaintiff failed to offer, evidence to counter her constructive admissions, the circuit court entered a summary judgment for the defendants.

On October 31, 2002, the plaintiff filed her motion to reconsider,to which the plaintiff's attorney attached his affidavit stating that he had not received the defendants' request for admissions and that he had been out of town and did not have a secretary between January 28 and February 4, 2002. On December 6, 2002, the circuit court denied the plaintiff's motion to reconsider, and on January 3, 2003, the plaintiff filed her timely notice of appeal.

The plaintiff's first contention on appeal is that the circuit court erred in denying her request to serve late responses to the defendants' request for admissions. The circuit court has discretion regarding the conduct of discovery.Ragan v. Columbia Mutual Insurance Co., 183 Ill.2d 342, 352,233 Ill.Dec. 643, 701 N.E.2d 493 (1998). We will not reverse the circuit court's decision to deny a motion for an extension of time, absent an abuse of discretion. Ragan, 183 Ill.2d at 352, 233 Ill.Dec. 643, 701 N.E.2d 493; Waterford Executive Group, Ltd. v. Clark/Bardes, Inc., 261, Ill.App.3d 338, 199 Ill.Dec. 207, 633 N.E.2d 1003 (1994),

"A party may serve on any other party a written request for the admission by the latter of the truth of any specified relevant fact set forth in the request." 134 Ill.2d R. 216(a). A fact is deemed admitted unless the party to whom the request for admissions was directed responds within 28 days with a sworn statement or written objection. 134 Ill.2d R. 216(c).

Supreme Court Rule 183 gives judges discretion to allow responses to be served beyond the 28-day time limit, but the respondent must first show good cause for the extension. 134 Ill.2d. R. 183; Bright v. Dicke, 166 Ill.2d 204, 209, 209 Ill.Dec. 735, 652 N.E.2d 275 (1995). The fact that the opposing party did not suffer prejudice is irrelevant. Bright, 166 Ill.2d at 209, 209 Ill.Dec. 735, 652 N.E.2d 275. The respondent must assert some independent ground why his untimely response should be allowed. Bright, 166 Ill.2d at 209, 209 Ill.Dec. 735, 652 N.E.2d 275.

On February 1, 2002, the defendants filed their request for admissions, along with their certificate of service, indicating that they had mailed the request to the plaintiff's attorney on January 28, 2002. The plaintiff did not deny or object to the requests within 28 days. When the plaintiff requested leave to file her late answers to the defendants' request for admissions, she asserted that her attorney was unable to locate the request for admissions and had been unaware of the document until the defendants filed their motion for a summary judgment on August 22, 2002. In the plaintiff's motion to reconsider, the plaintiff's attorney asserted that he had been out of town and without a secretary at the time of service.

We find that the circuit court did not abuse its discretion by denying the plaintiff's request for an extension of time to respond to the defendants' request for admissions. Mistake, inadvertence, or simple attorney neglect cannot constitute the sole basis for a good cause determination. See Greene v. City of Chicago, 48 Ill.App.3d 502, 513, 6 Ill.Dec. 696, 363 N.E.2d 378 (1976), aff'd, 73 Ill.2d 100, 22 Ill.Dec. 507, 382, N.E.2d 1205 (1978); Floyd v. United States, 900 F.2d 1045, 1048 (7th Cir.1990). We affirm the circuit court's judgment on this issue.

The plaintiffs second contention on appeal is that even if the circuit court did not abuse its discretion in denying the plaintiff's request for an extension, the facts deemed admitted do not support the circuit court's award of a summary judgment for the defendants. We do not agree. A summary judgment is proper where, when viewed in the light most favorable to the nonmoving party, the pleadings, depositions, and admissions on file, together with the affidavits, if any, reveal that there is no genuine issue on any material fact and that the moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2002); Purtill v. Hess, 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867 (1986). The failure to respond to a request for admissions may be considered in a motion for a summary judgment and provide a basis for a court to grant the motion for a summary judgment. P.R.S. International, Inc. v. Shred Pax Corp., 184 Ill.2d 224, 244, 234 Ill.Dec. 459, 703 N.E.2d 71 (1998). Although a summary judgment is an expeditious method of disposing of a lawsuit, it should only be allowed when the right of the moving party is clear and free from doubt. Purtill, 111 Ill.2d at 240,95 Ill.Dec. 305,489 N.E.2d 867. We review a summary judgment de novo. Busch v. Graphic Color Corp., 169 Ill.2d 325, 333, 214 Ill.Dec. 831, 662 N.E.2d 397 (1996).

The burden of proof and the initial burden of production for a motion for a summary judgment lie with the movant. Pecora v. County of Cook, 323 Ill.App.3d 917, 933, 256 Ill.Dec. 652, 752 N.E.2d 532 (2001). A defendant who moves for a summary judgment may meet the initial burden of production either (1) by affirmatively showing that some element of the cause of action must be resolved in the defendant's favor or (2) by demonstrating that the plaintiff cannot produce evidence necessary to support the cause of action. Pecora, 323 Ill.App.3d at 934, 256 Ill.Dec. 652, 752 N.E.2d 532. Only if the defendant satisfies the initial burden of production does the burden shift to the plaintiff to present some factual basis that would arguably entitle the plaintiff to a favorable judgment. Rice v. AAA Aerostar, Inc., 294 Ill.App.3d 801, 805, 229 Ill.Dec. 20, 690 N.E.2d 1067 (1998).

Section 9 of the Act provides, "No person may disclose or be compelled to disclose the identity of any person upon whom a...