Janczyk v. Davis

• Decision Date: 01 August 1983
• Docket Number: Docket No. 57568
• Citation: 337 N.W.2d 272,125 Mich.App. 683
• Parties: Valerie JANCZYK, Plaintiff-Appellant, v. Mary Elizabeth DAVIS and R. Hiley Davis, Defendants-Appellees. 125 Mich.App. 683, 337 N.W.2d 272
• Court: Court of Appeal of Michigan — District of US

Page 272

337 N.W.2d 272

Valerie JANCZYK, Plaintiff-Appellant, v. Mary Elizabeth DAVIS and R. Hiley Davis Defendants-Appellees.

Docket No. 57568.

125 Mich.App. 683, 337 N.W.2d 272

Court of Appeals of Michigan.

Submitted Jan. 20, 1983.

Decided May 17, 1983.

Rehearing Denied July 13, 1983.

Released for Publication Aug. 1, 1983.

[125 MICHAPP 685] Posner, Posner and Posner by Samuel Posner and Gerald F. Posner, Detroit, for plaintiff-appellant.

Vandeveer, Garzie, Tonkin, Kerr & Heaphy, P.C. by C.F. Boyle, Jr., Detroit, for defendants-appellees.

Before T.M. BURNS, P.J., and MAHER and HOOD, JJ.

T.M. BURNS, Presiding Judge.

On December 16, 1980, a jury returned a verdict of no cause of action in this case. Plaintiff appeals as of right.

On August 10, 1973, defendant Mary Davis was driving a car owned by her father, defendant R. Hiley Davis on eastbound I-94 in the evening rush hour traffic. Unfortunately, she accidentally hit the car in front of her. Plaintiff was a passenger in that car. Eventually, plaintiff sued defendants. Although the case was filed in the Wayne County Circuit Court, it was subsequently remanded to the [125 MICHAPP 686] Detroit Court of Common Pleas pending the outcome of mediation. Because the mediation award was for over $10,000, however, the case was reassigned to the circuit court.

While the case was still pending in the common pleas court, plaintiff filed a motion for summary judgment. Earlier, on July 20, 1979, plaintiff had filed 24 requests for admissions. Defendants answered these requests four days later. However, rather than having either defendant sign them, defendants' attorney signed the answers. He also failed to have them verified. GCR 1963, 312.1 states:

"Request for Admission. After the commencement of an action a party may serve upon all other parties a written request for the admission by a designated party * * * of the truth of any relevant matters of fact set forth in the request. * * * Each of the matters of which an admission has been requested shall be deemed admitted unless, within a period designated in the request, not less than 10 days after service thereof or within such shorter or longer time as the court may allow on motion and notice, the party to whom the request is directed serves upon the party requesting the admission either (1) a sworn statement denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters, or (2) written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in whole or in part, together with a notice of hearing the objections at the earliest practicable time."

Because neither defendant either signed or verified the answers as the rule requires, plaintiff argued that defendants had, in fact, admitted the requests for admissions. Therefore, she argued that she was entitled to a summary judgment.

[125 MICHAPP 687] On February 22, 1980, the common pleas judge denied the motion to strike the answers and for partial summary judgment "on the ground that plaintiff did not personally sign the request for admissions as required by GCR 1963, 312.1". Defendants now concede that GCR 1963, 312.1 does not require a plaintiff to personally sign the request for admissions.

On appeal, plaintiff argues that the common pleas judge incorrectly denied her motion for partial summary judgment. Defendants first argue that this issue is not properly before this Court because plaintiff failed to raise it in the motion for a new trial. The sanctions for failing to properly respond to a request for admissions are not self-executing. A party cannot wait until after the trial to claim that the request was admitted. Curylo v. Curylo, 104 Mich.App. 340, 346, 304 N.W.2d 575 (1981); People ex rel. Reynolds v. Aldridge, 107 Ill.App.3d 679, 63 Ill.Dec. 346, 437 N.E.2d 1268 (1982); Massey v. Haupt, 632 P.2d 824 (Utah, 1981); Gilbert v. General Motors Corp., 133 F.2d 997 (CA2, 1943), cert. den. 319 U.S. 743, 63 S.Ct. 1031, 87 L.Ed. 1700 (1953). However, plaintiff has in fact properly preserved this issue for appeal. A motion for a new trial is "not necessary to preserve for appellate review alleged errors ruled upon by the trial judge". Smith v. Jones, 382 Mich. 176, 184, 169 N.W.2d 308 (1969). See also Bunda v. Hardwick, 376 Mich. 640, 672, 138 N.W.2d 305 (1965); Kansas City Life Ins. Co. v. Durant, 99 Mich.App. 754, 298 N.W.2d 630 (1980), lv. den. 410 Mich. 911 (1981).

Actually, the circuit court trial judge never ruled on this issue. Instead, the common pleas judge did. Conceivably, M.C.L. Sec. 728.4; M.S.A. Sec. 27.3654 (now repealed) controlled this case:

"In all cases in which any of the parties to the [125 MICHAPP 688] litigation feel themselves aggrieved by the judgment, or final order of the common pleas court, appeal or certiorari shall lie within 20 days of the date of the judgment or order, to the circuit court of the county for review * * *."

However, the order denying the motion for summary judgment in the present case was neither a judgment nor a final order. For a final order to be appealable, it must fully adjudicate the parties' rights. Jones v. Jones, 72 Ohio Abs. 259, 134 N.E.2d 735 (1952); O'Toole v. Suzanne Remy, Inc., 194 Misc. 799, 87 N.Y.S.2d 908 (1949); Biggins v. Oltmer Iron Works, 154 F.2d 214 (CA7, 1946). This case was originally filed in the circuit court. It was merely temporarily removed to the common pleas court pending the outcome of mediation. Thus, it did not go from the common pleas court to the circuit court on appeal. At the time that the motion was denied, it was in fact denied by the trial judge. A new trial judge was merely later assigned to the case. ¹

In fact, the normal reasons that would require the circuit judge to first pass on this issue do not apply here. One reason is to fully develop the record for appellate review. See generally People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973). Because this is a legal issue, it has been sufficiently developed. Another reason is to commit a decision to the trial judge's discretion whenever the issue requires it. See generally People v. Henry, 395 Mich. 367, 376, 236 N.W.2d 489 (1975). However, this issue was committed to the trial [125 MICHAPP 689] judge's discretion when the motion for summary judgment was filed.

Defendants next argue that the common pleas judge correctly denied the motion to strike--though for an incorrect reason. They claim that, because a number of the questions were improper, their failure to verify their answers cannot be held as admissions.

Generally, where a party fails to answer, the requests are taken as admitted. DeGrove v. Sanborn, 70 Mich.App. 568, 246 N.W.2d 157 (1976); Woodrow v. Johns, 61 Mich.App. 255, 232 N.W.2d 688 (1975). Some courts have in fact ruled that, even if a party fails to respond, the request will not be held admitted if the questions were improper. Pickens v. Equitable Life Assurance Society of the United States, 413 F.2d 1390 (CA5, 1969); General Accident Fire & Life Assurance Corp., Ltd. v. Cohen, 203 Va. 810, 127 S.E.2d 399 (1962). However, General Accident was criticized in Comment, Procedure Rule 36-Request for Admissions, 65 W.Va.L.Rev. 243, 244 (1963): "In so ruling, that court apparently ignored the express provisions of the rule which require either a denial or an objection to the request." We believe that the better rule is cited in 8 Wright & Miller Federal Practice & Procedure, Sec. 2259, p. 725:

"A party who fails to respond to a request should be held to have admitted it even though the request was objectionable * * *. It is needlessly wasteful of judicial effort to allow a party to obtain a reversal on appeal because of an objection he could have but failed to make when the request was served."

The rule's plain language states that a request "shall be deemed admitted" unless the party served with the request either denies the request [125 MICHAPP 690] under oath or objects. Because defendants failed to do either, the requests should have been held to have been admitted. ²

Among the cases that hold that requests are admitted if unanswered even if they are improper are ASEA, Inc. v. Southern Pacific Transportation Co., 669 F.2d 1242 (CA9, 1981); Rutherford v. Bass Air Conditioning Co., Inc., 38 N.C.App. 630, 248 S.E.2d 887 (1978); Morast v. Auble, 164 Mont. 100, 519 P.2d 157 (1974); and Williams v. Krieger, 61 F.R.D. 142 (S.D.N.Y.,1973).

Verification is required to "impress upon a party of whom admission is requested the gravity of his responsibility". Comment, 65 W.Va.L.Rev. 243, 245, supra. The requests should have been held to have been admitted as if they had not been answered: "[a] response even though sufficient in substance to constitute a 'denial', is held to be an admission if not under oath as required by the rule". Anno: What constitutes a "denial" within federal rule of civil procedure 36 and similar state statutes and rules pertaining to admissions before trial, 36 A.L.R.2d 1192, 1193 (1954). See also Robinson v. Navajo Freight Lines, Inc., 70 N.M. 215, 219, 372 P.2d 801 (1962); White River Limestone Products Co. v. Missouri-Pacific R. Co., 228 Ark. 697, 310 S.W.2d 3 (1958). Furthermore, these admissions may form the basis of a summary judgment. In Farish v. Lum's Inc., 267 So.2d 325 (Fla., 1972), the defendant filed his answers timely but failed to verify them. Even though his attorney pleaded that the inadvertence was his own personal fault, the trial judge granted summary judgment. The Florida Court of Appeals reversed. However, the [125 MICHAPP 691] Florida Supreme Court reinstated the judgment and ruled that the trial judge had not abused his discretion. ³ See also Johnson v. Town of Haverstraw, 102 Misc.2d 923, 425 N.Y.S.2d 192 (1980); Heuer v. Basin Park Hotel & Resort, 114 F.Supp. 604 (W.D.Ark...