TIRES'N TRACKS v. Dominic Fiordirosa Construction Co.

• Decision Date: 11 June 2002
• Docket Number: No. 2-01-0707.,2-01-0707.
• Citation: 264 Ill.Dec. 908,331 Ill. App.3d 87,771 N.E.2d 612
• Parties: TIRES 'N TRACKS, INC., Plaintiff and Counter-defendant-Appellee, v. DOMINIC FIORDIROSA CONSTRUCTION COMPANY, INC., Defendant and Counter-plaintiff-Appellant (The City of Wheaton, Defendant).
• Court: United States Appellate Court of Illinois

771 N.E.2d 612

331 Ill. App.3d 87

264 Ill.Dec. 908

TIRES 'N TRACKS, INC., Plaintiff and Counter-defendant-Appellee, v. DOMINIC FIORDIROSA CONSTRUCTION COMPANY, INC., Defendant and Counter-plaintiff-Appellant

(The City of Wheaton, Defendant).

No. 2-01-0707.

Appellate Court of Illinois, Second District.

June 11, 2002.

John J. Foley, Daniel J. Schairbaum, Maurides & Foley, L.L.C., Chicago, for Dominic Fiordirosa Construction Company, Inc.

James M. Dash, Marlaine J. McVisk, Much, Shelist, Freed, Denenberg, Ament & Rubenstein, Chicago, for Tires `N Tracks, Inc.

Justice BYRNE delivered the opinion of the court:

In July 2000, plaintiff and counterdefendant, Tires `N Tracks, Inc., filed a verified complaint against defendant and counterplaintiff, Dominic Fiordirosa Construction Company, Inc. (Fiordirosa or defendant), and defendant, the City of Wheaton (the City). Count I alleged breach of contract on the part of Fiordirosa and sought a judgment of at least $15,750 plus interest for its failure to pay for certain work done by plaintiff in installing a water main as part of a water system improvement project. Count II sought an accounting and the foreclosure of a lien on funds due to defendant from the City. The City is a stakeholder. in this suit. Plaintiff was a subcontractor on the project, and defendant was the general contractor. In defendant's verified answer to plaintiff's allegation that plaintiff had performed all conditions required to be performed under the subcontract, defendant generally denied the allegation without stating any facts showing how plaintiff had failed to perform.

On October 12, 2000, defendant filed its unverified counterclaim, alleging that plaintiff had breached the contract because certain joint connections on the water main had leaked. Defendant alleged that it notified plaintiff of its intent to repair the defective joints at plaintiff's cost and requested plaintiff to sign a copy of the correspondence as an indication of plaintiff's agreement to the proposed course of action. Attached to the counterclaim was a copy of a letter presumably signed by a representative of plaintiff agreeing to pay for the cost of the repairs on a time and material basis. Defendant alleged that the repairs cost $29,604.60 and sought compensation for them. The trial court ultimately entered summary judgment for plaintiff on count I of its complaint and against defendant on its counterclaim. The court entered a finding that there was no just reason to delay enforcement or appeal (see 155 Ill.2d R. 304(a)). Defendant timely appeals following the denial of its postjudgment motions. For reasons that we shall explain, we affirm the judgment.

On September 19, 2000, plaintiff served defendant with a set of 11 requests to admit facts (collectively, the request to admit) pursuant to Supreme Court Rule 216(c) (134 Ill.2d R. 216(c)). Under Rule 216(c), each matter of fact of which admission is requested is admitted unless, within 28 days after the service of the request, 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 admission is requested or setting forth in detail the reasons why the party 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 that the request is otherwise improper in whole or in part. 134 Ill.2d R. 216(c).

On September 29, 2000, defendant served plaintiff objections to 3 of the 11 requests (Nos. 3, 4, and 5) and unsworn answers to, or denials of, the remaining 8 requests. If defendant failed properly to deny the requests to admit, then certain relevant facts would be admitted as true for purposes of entering summary judgment in favor of plaintiff. Under the rule, defendant is deemed to have admitted the facts in the following numbered requests to admit as summarized here: (No. 1) defendant entered into the subcontract with plaintiff to install the water main; (No. 2) the amount to be paid for the work was a per-unit price; (No. 6) "As of the present date, taking into account all credits, Fiordirosa owes Tires `N Tracks at least $15,750 for its work pursuant to the Subcontract"; (No. 7) despite a demand for payment, defendant has failed and refused to pay for the work performed by plaintiff; (No. 8) the City is holding funds in excess of $15,750 due but unpaid to defendant under the contract between defendant and the City; (No. 9) on or about April 7, 2000, plaintiff served notice of its claim on the City by certified mail; (No. 10) plaintiff also served a copy of the notice of its claim on defendant by certified mail; and (No. 11) this suit was commenced within 90 days after service of such notice.

On January 29, 2001, well after the 28-day period for responding had elapsed, plaintiff served its motion for summary judgment predicated in part on defendant's failure to serve timely sworn denials of 8 of the 11 requests to admit; the motion was filed on January 31, 2001. On January 30, 2001, defendant served an "Emergency Motion for Leave to Amend Answers to Request to Admit." This motion was filed January 31, 2001. However, no "good cause" was asserted for the failure of defendant to provide timely sworn denials. Defendant merely asserted that allowing it to attach a verification to its responses would result in nothing more than a "re-verification or reaffirmation" of its verified answers to plaintiff's complaint; that plaintiff would not be prejudiced; and that defendant's prior verified answer to the complaint should not be deemed a nullity. The trial court denied defendant's emergency motion without prejudice on January 31, apparently because no "good cause" had been shown for the delay.

On February 9, 2001, defendant also filed a motion for leave to file its response to the request to admit nunc pro tunc September 19, 2000. Again, defendant failed to assert "good cause" for extending the time to respond. Instead, defendant merely argued that since its attorney signed the original response, this satisfied the requirement of providing a sworn statement under Rule 216(c). The court allowed defendant to file the response (but not nunc pro tunc) on February 15, 2001, without ruling on its efficacy.

On April 5, 2001, after a hearing, the trial court entered judgment in favor of plaintiff on count I for breach of contract and also entered judgment against defendant on its counterclaim seeking payment of its claim based on the same subcontract.

On April 11, 2001, defendant filed a motion to reconsider and vacate the judgment. Defendant also sought leave to file an amended, verified counterclaim. In its motion to reconsider, defendant argued inter alia that the court erred in requiring "good cause" to be shown in order for defendant to "amend" its response to the request to admit. Defendant characterized its response as a "pleading" subject to amendment under section 2-616(a) of the Code of Civil Procedure (Code) (735 ILCS 5/2-616(a) (West 2000)).

In defendant's motion to file an amended counterclaim, defendant claimed that it erred in alleging previously that it had been damaged as a result of plaintiff's breach of the "subcontract." Defendant was now asserting that it was damaged as a result of plaintiff's breach of an agreement represented by the letter previously attached to the counterclaim. This argument had been rejected by the court in ruling on the motion for summary judgment. In granting summary judgment, the court determined that the letter merely represented a claim arising out of the same contract—the subcontract.

On appeal, defendant argues that (1) plaintiff's failure promptly to seek a hearing on defendant's objections or deficient responses to the request to admit has resulted in the waiver of plaintiff's right to have the facts deemed admitted; (2) a genuine issue of material fact exists regarding whether plaintiff performed all of the conditions of its contract, which precludes the entry of summary judgment; (3) a showing of good cause is not required for the trial court to allow amendment of the denials to the request to admit; and (4) the court abused its discretion in denying defendant leave to file an amended, verified counterclaim. We consider together whether plaintiff was required to seek promptly a hearing on defendant's objections or deficient denials to the request to admit and whether defendant was required to show good cause to "amend" its answers after the 28-day period for responses had elapsed.

The failure to file a timely response to a request to admit facts—including the "ultimate" facts of a case—in accordance with the requirements of Rule 216(c) results in the admission of those facts. 134 Ill.2d R. 216(c); People v. Mindham, 253 Ill.App.3d 792, 797, 192 Ill. Dec. 680, 625 N.E.2d 835 (1993) (effect of ignoring request to admit is that matters contained in request automatically stand admitted); see generally Bright v. Dicke, 166 Ill.2d 204, 209 Ill.Dec. 735, 652 N.E.2d 275 (1995). A response denying the facts that is neither timely nor sworn fails to comply with the rule. Johannsen v. General Foods Corp., 146 Ill.App.3d 296, 300, 99 Ill.Dec. 851, 496 N.E.2d 544 (1986). An admission pursuant to a request to admit operates as a judicial admission that is considered incontrovertible and has the effect of withdrawing a fact from contention. Mindham, 253 Ill.App.3d at 797, 192 Ill. Dec. 680, 625 N.E.2d 835.

In Bright, our supreme court appears to have required strict compliance with the rule absent a showing of good cause for the delay in complying. There, the defendant's response to the plaintiff's request to admit was untimely and unsworn. The defendant moved for leave to file a properly sworn response out of time, but she offered no explanation why the deadline was not met or why the document was not signed under oath. The trial court denied...