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No. 3--02--0620

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2003

PRESIDING JUSTICE McDADE delivered the opinion of the court:

The plaintiff, Montalbano Builders, alleges that thedefendants, David Rauschenberger and Rauschenberger Contractors(Rauschenberger or defendants) failed to satisfactorily completework for which Montalbano had contracted. Specifically,Montalbano alleged that it had contracted with Rauschenberger forthe completion of work on property that was to be conveyed asimproved to the Bolingbrook Park District. Under the agreement,Rauschenberger committed to grade and seed a detention basin onthe property. Montalbano alleged in the complaint that the workwas not satisfactorily completed and sought damages in the formof compensation for money paid to have the work completed byanother firm.

In response, Rauschenberger filed a five-count counterclaim.Count I alleged that Rauschenberger completed the detention pondand that Montalbano was in breach of the contract by refusing topay $95,360 due for material and labor. Count II sought toenforce a mechanic's lien on the property. Count III alleged thatMontalbano breached a contract with Rauschenberger by failing topay $53,225.68 for improvements done by defendants in asubdivision owned by Montalbano. Count IV alleged that Montalbanorefused to pay for a timber wall constructed at its request. Thecounterclaim alleged that Montalbano owed $11,500 for the walland $500 for various mowing duties. In count V Rauschenbergerasserted that Montalbano owed $3,024.38 for mowing work onvarious Montalbano properties. Count VI complained of intentionalinterference with a prospective business advantage. Montalbanosubsequently filed an answer, in which it denied the allegationsof the counterclaim.

On November 16, 2000, Rauschenberger's attorney filed proofwith the court of service of a document entitled "Request toAdmit Fact Pursuant to Supreme Court Rule 216" on Montalbano'sattorney. Approximately two months passed during whichRauschenberger did not receive a response to the request toadmit. On January 12, 2001, Rauschenberger filed a motion forpartial summary judgment, using as a basis the facts that wereadmitted by Montalbano's failure to respond to the request foradmission.

Montalbano filed a motion to bar on February 9, 2001, inwhich it sought to prevent the use of certain evidence obtainedduring discovery for the purpose of supporting Rauschenberger'smotion for partial summary judgment. The motion also sought anextension of the deadline for the end of written discovery andreported that Montalbano had not received the request foradmission that was mailed on November 9, but it did not elaborateon the point.

On May 18 2001, Montalbano filed a motion for leave to filea response to the request for admission. In the motion,Montalbano claimed not to have received the request sent onNovember 9, 2000, until the motion for partial summary judgmentwas received on January 12, 2001. It claimed that its nonreceiptof the request was good cause for allowing an extension of thedeadline to file a response.

The trial court denied the motion for leave to file aresponse and considered defendants' motion for partial summaryjudgment. The court ruled in favor of Rauschenberger's claims oncounts I, III, IV and V. The court then dismissed Montalbano'sclaims on the basis of res judicata.

Montalbano argues on appeal that the trial court abused itsdiscretion when it denied leave to respond to the request foradmission. It also argues that the request was improper, since itwas not a request for the admission of facts but, rather, waslegal conclusion. Finally, the plaintiff claims that the trialcourt erred in granting summary judgment in favor of thedefendants on counts I, III, IV, and V of the counter-complaint.

ANALYSISMotion for Leave to Respond

Montalbano first argues that the trial court erred indenying it leave to file a late response to Rauschenberger'srequest for admission. The trial court has the discretion togovern the conduct of pretrial discovery, and its ruling on themotion to grant leave to reply should only be overturned if thatdiscretion was abused. Bright v. Dicke, 166 Ill. 2d 204, 208, 652N.E.2d 275, 277 (1995).

In this case, Montalbano has not shown good cause for itsattempted late filing. Rauschenberger has proof of service thatindicates that the request for admission was sent out on November9, 2000. Upon receipt, the plaintiff had 28 days to respond, andyet it did nothing for almost two months. The plaintiff claimsthat this was because it had not actually received the request,and only later learned about it when the facts deemed admittedwere used as support in Rauschenberger's motion for partialsummary judgment.

Despite the plaintiff's protestations to the contrary, thiscourt should presume that, since the request was mailed, it wasreceived four days after the date that the notice of service wasfiled. Tate v. American General Life & Accident Insurance Co.,274 Ill. App. 3d 769, 773, 655 N.E.2d 18, 21 (1995); 145 Ill. 2dR 12. To do otherwise would undermine the purpose of having rulesmandating forms of service. As our supreme court has noted, "[i]fproper giving of the notice can now be frustrated by the mereallegation of the defendant that he did not receive it, then thegiving of notice by mail cannot be relied upon even though therules specify such a method." Bernier v. Schaefer, 11 Ill. 2d525, 529, 114 N.E.2d 577, 579 (1957). It is clear that theprinciple must apply not only to notice, but to the service ofdiscovery documents as well. The rules specify that discoverydocuments may be served upon a party's attorney of record andthat proof of service may be had by an attorney's certificate orby affidavit containing the mailing address to which thedocuments were sent and the time and place of the mailing. 145Ill. 2d Rs.11, 120.

These requirements were fulfilled by the attorney forRauschenberger. The proof of service indicated that the requestwas sent to the address of Montalbano's attorney of record onNovember 9, 2000. Michael McGurn, Montalbano's attorney,testified that the address was indeed his. There was no reasongiven for the failure to respond other than the alleged failureto receive the document.

Nevertheless, there may be circumstances where an extensionof time is appropriate. It is conceivable that the plaintiff didnot receive the request to admit. Rauschenberger may haveaccidentally neglected to include the request itself in theenvelope. The document may have inadvertently been lost amongother papers at Mr. McGurn's office. Attorneys are human, and canmake mistakes, and the court should be mindful of this fact whengranting or denying relief. Montalbano argues that, despite itsfailure to comply with the rule, it deserves a chance to do so,in light of the catastrophic consequences of the failure toanswer the request.

Montalbano's argument would be more compelling if it hadacted immediately to rectify the situation at the time itrealized that it had not responded to a discovery document.Although the plaintiff alleges that it did not receive therequest in November 2000, it is undisputed that it received therequest, attached to the motion for partial summary judgment, inJanuary of 2001. Montalbano should have immediately attempted toremedy the problem. Instead, the plaintiff filed a "motion tobar" which only briefly mentioned the request to admit. Theplaintiff's attorney also wrote a letter to Rauschenberger'sattorney about the claimed failure of delivery, but this in noway apprised the court of the difficulty. Indeed, the court didnot learn of the problem until the plaintiff filed its motion forleave to reply, which was submitted in May 2001, four monthsafter the plaintiff acknowledges that it was aware of theexistence of the request. No legitimate reason has been given forthe four-month delay. In light of the length of the delay and thefailure to give an adequate explanation, we find no abuse ofdiscretion in the trial court's denial of the motion. Thedecision should be affirmed.

Motion for Partial Summary Judgment

The plaintiff next argues that the trial court erred ingranting summary judgment in favor of Rauschenberger on counts Iand III of the countercomplaint. Specifically, the plaintiffcontends that the admissions relied on as support for the summaryjudgment were conclusions of law rather than admissions of factand were therefore improper. The trial court's ruling on themotion for partial summary judgment is a matter of law that wewill review de novo. We will affirm a grant of summary judgmentif the pleadings, depositions, affidavits and admissions showthat there are no genuine issues of material fact and if themotion was properly granted as a matter of law. Largosa v. FordMotor Co., 303 Ill. App. 3d 751, 753, 708 N.E.2d 1219, 1221(1999).

The facts set out in the request to admit that was notanswered by the plaintiff are, by virtue of the failure torespond, deemed admitted. Mt. Zion State Bank & Trust v.Consolidated Communications, Inc., 169 Ill. 2d 110, 125, 660N.E.2d 863, 872 (1995).

Count I of the countercomplaint alleged that Rauschenbergerwas not paid for the detention pond and seed blanket installed ata subdivision owned by Montalbano. Count III of thecountercomplaint alleged that Rauschenberger was not paid for thelaying of sod and grading of land it completed at anothersubdivision owned by Montalbano.

By failing to respond to Rauschenberger's request foradmission, the plaintiff admitted to the following with respectto count I: (1) Montalbano entered into an agreement withRauschenberger in which Rauschenberger was to lay seed bed andinstall a retention pond on Montalbano property, (2)Rauschenberger completed the work in a timely and workmanlikemanner, and (3) as a result of completing the work,Rauschenberger is owed $95,360.60. With respect to count III,the request for admission states that Montalbano entered into anagreement with Rauschenberger concerning work to be performed atanother Montalbano subdivision and that Rauschenberger completedthe work in a timely and workmanlike manner and that Montalbanoowes Rauschenberger for the work performed.

The plaintiff argues that the "admissions" on which thesummary judgment was based were legal conclusions rather thanfacts. For example, the plaintiff claims that the assertion "thework was done in a timely and workmanlike manner" is conclusory,as is the assertion that Montalbano "owes" Rauschenberger thebalance of the contract.

Preliminarily, these objections appear to have been waived.Rule 216 requires that a party submit a written objection to arequested admission if it is "improper in whole or in part." 134Ill. 2d R. 216(c). That the request asks the admission of a legalconclusion, rather than of a fact, is improper and requires awritten objection, according to the rule. This form ofimpropriety is no different from any other kind, such asirrelevance or the existence of privilege. The failure of theobjecting party to file a written objection ordinarily results inwaiver of the issue, and it should be no different in this case.P.R.S. International v. Shred Pax Corp., 184 Ill. 2d 224, 245,703 N.E.2d 71, 81 (1998) (Harrison, J., specially concurring).

Although a party may constructively admit facts, even"ultimate" facts, by failing to respond to a request foradmission, a party does not constructively admit "legalconclusions" by a failure to respond to requests that containthose conclusions. Shred Pax, 184 Ill. 2d at 239, 708 N.E.2d at78. So, while whether a party paid another party a certain amountof money is a fact that may be included in a request foradmission and may be constructively admitted, assertions that aparty "breached" a contract or "failed to perform" are legalconclusions that are not appropriately included in a request toadmit. Shred Pax, 184 Ill. 2d at 240-42, 703 N.E.2d at 79-80.

First, it must be determined whether the admissionsrequested by the w Rauschenberger were of facts or were legalconclusions. In Nos. 21, 22, 31, 32, 33, 34 and 35 of its requestto admit, Rauschenberger sought admissions by Montalbano that itsolicited Rauschenberger to complete certain work for certainsums of money. These admissions are clearly of fact. Theassertion that Montalbano asked Rauschenberger to do certain workin exchange for compensation is not a conclusion to be drawn, buta fact that either happened or did not. Therefore, by failing torespond to the request for admission, Montalbano constructivelyadmitted those facts.

In Nos. 23 and 36 of its request for admission,Rauschenberger asserts that it completed the work in a "good andworkmanlike manner." Inherent in the assertion that something wasdone "well" or in a "good manner" or a "workmanlike manner" areconclusions based on underlying facts concerning the performanceof the work. Nevertheless, they are not legal conclusions. Thework was either performed well or it was not, but either way, thecharacterization of the work as "good" or "not good" is a factualconclusion that is permissible in a request for admission.Consequently, the plaintiff admitted the facts by failing torespond.

Finally, in Nos. 24 and 37 of the request, Rauschenbergerasserts that certain amounts of money are "due and owing" as aresult of the completion of the work. Like the other statements,these are questions of fact rather than legal conclusions. Arequest seeks admission of a fact rather than a legal conclusionif it requires the finder of fact to "take some analytical step,no matter how small, from the contents of the admissions to thefinal conclusion that the party seeks to establish." Hubeny v.Chairse, 305 Ill. App. 3d 1038, 1043-44, 713 N.E.2d 222, 226(1999). Here, the court was required to take an inferential stepfrom the ultimate facts that the agreement had been made to docertain work, that the work had been done, and that the money hadnot been paid, though it was owed as a result of the work done,to the conclusion that Montalbano was in breach of the contractand that summary judgment in favor of Rauschenberger wasappropriate. This required inference leads to thecharacterization of the statements as questions of fact. Sincethe request was for admission of factual matters, it wasappropriate for the court to rely on them in granting summaryjudgment. The trial court's ruling is affirmed.

Finally, the plaintiff argues that the trial court erred ingranting summary judgment in favor of Rauschenberger on counts IVand V of the countercomplaint. Again, we will review thisdetermination de novo. Largosa, 303 Ill. App. 3d at 753, 708N.E.2d at 1221.

Affidavits in support of Rauschenberger's motion for summaryjudgment on counts IV and V asserted that the plaintiff hiredRauschenberger to construct a "timber wall" on Montalbanoproperty and to perform mowing work on other property. Theaffidavit asserted that the work was completed as required. Theplaintiff has done nothing to establish facts that contradict thefacts alleged by the defendants. Summary judgment, of course, isappropriate when the evidence before the court establishes thatthere are no disputed issues of fact between the parties and thatjudgment as a matter of law is appropriate. 735 ILCS 5/2-1005(West 2002). In this case, since Montalbano has produced noevidence that creates a disputed issue of fact, judgment forRauschenberger was appropriate. The ruling is affirmed.

CONCLUSION Montalbano has not shown that it was error for the court todeny its motion for leave to respond to Rauschenberger's requestfor admission. The plaintiff waited over four months from thetime when it acknowledges that it was aware of the request andhas shown no good cause for the delay. The court did not abuseits discretion in denying the motion.

The court also did not err in granting summary judgment infavor of Rauschenberger on counts I and III of thecountercomplaint. The admissions deemed to have been made by theplaintiff due to its failure to respond to the request to admitwere admissions of fact, not legal conclusions, and weresufficient to support summary judgment. We have made thisdetermination even though it appears that the plaintiff haswaived the issue by failing to file a written objection to therequests in the required time frame.

Finally, the trial court did not err in granting summaryjudgment in favor of Rauschenberger on counts IV and V of thecounterclaim. The plaintiff has not produced anything that wouldcreate a disputed issue of fact and thereby preclude summaryjudgment. Rauschenberger, on the other hand, has alleged factssufficient to entitle it to summary judgment. We affirm in fullthe rulings of the trial court.

Affirmed.

SCHMIDT and BARRY, JJ., concur.