Brookbank v. Olson

SUPREME COURT CASES

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Brookbank v. Olson

State: Illinois

Court: 1st District Appellate

Docket No: 1-08-1069 Rel

Case Date: 04/08/2009

Preview:THIRD DIVISION April 8, 2009

No. 1-08-1069

LAUREN BROOKBANK, Plaintiff-Appellant, v. KATIE ANN OLSON,

Defendant-Appellee.

) ) ) ) ) ) ) ) ) )

Appeal from the Circuit Court of Cook County.

No. 06 M6 2428 Honorable Edward A. Antonietti, Judge Presiding.

JUSTICE THEIS delivered the opinion of the court: This case appears before us on a permissive interlocutory appeal pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308) to consider a question certified by the trial court regarding the interpretation of Supreme Court Rule 216(c) (134 Ill. 2d R. 216(c)). During the pendency of this personal injury action, plaintiff Lauren Brookbank served a request to admit facts upon defendant Katie Ann Olson. When defense counsel was unable to locate defendant, the trial court granted counsel leave to provide a sworn statement denying the matters requested to be admitted in defendant's absence. Plaintiff objected and filed a motion to strike the responses because the party did not personally provide the sworn statement denying the matters of which admission was requested pursuant to Supreme Court Rule 216(c). 134 Ill. 2d R. 216(c). The trial court denied the motion to strike and certified the following question for our review: "Whether the trial court has authority to allow only a

1-08-1069 party's attorney to sign and verify a [r]esponse to a Rule 216 [r]equest to [a]dmit facts, when the attorney cannot locate the party, i.e., his client." We granted plaintiff's petition for leave to appeal and answer the certified question in the negative. BACKGROUND Plaintiff brought this negligence action against defendant seeking damages for personal injuries she sustained as a result of a car collision with defendant's vehicle. Plaintiff obtained substitute service on the Secretary of State after a return of service directed to defendant's last known address revealed that defendant had moved from that address. The matter was set for a hearing on plaintiff's motion for a default judgment and a "prove-up." Thereafter, defense counsel entered an appearance and the trial court granted a motion to vacate any defaults. An answer and affirmative defenses were also filed. During discovery, plaintiff served a request to admit facts on defendant. The request sought admission from defendant that: (1) an attached exhibit was a true and accurate statement of an account for plaintiff's medical expenses; (2) the charges were fair, reasonable and customary charges for the medical services performed; and (3) the charges were for services that were reasonable and necessary treatment for injuries suffered as a result of the accident. Within the time allowed for a response, defense counsel responded, objecting to the requests as improper and indicating that counsel could not admit or deny the requests because he was "unable to contact [d]efendant to determine the veracity of any admission or denial." Additionally, defense counsel was unable to produce his client for a deposition. The record -2-

1-08-1069 reflects that defense counsel hired an investigator who indicated that all "skip tracing" leads had been exhausted and that he was unable to locate defendant. In response, plaintiff filed a motion to strike the response and to deem the matters admitted, arguing that the response failed to comply with Supreme Court Rule 216(c) (134 Ill. 2d R. 216(c)) because the party did not verify the responses. The trial court denied plaintiff's motion to strike and granted defense counsel leave to serve an amended response verified only by counsel. Defense counsel then signed and verified the responses in defendant's absence, denying the matters of which admission was requested. There is no indication in the record that defense counsel ever had any contact with defendant. Thereafter, the matter proceeded to mandatory arbitration. Defense counsel admitted negligence on behalf of his client and the trial court granted a motion to excuse defendant's presence at the arbitration. After the arbitrators entered an award in favor of plaintiff for $3,000 plus costs, defense counsel filed a notice rejecting the award on behalf of defendant. Plaintiff then filed a renewed motion to strike defendant's response to the request to admit, again arguing that the verified response signed only by counsel did not comply with Rule 216(c). The trial court denied plaintiff's motion, but certified the question that is the subject of this appeal pursuant to Supreme Court Rule 308. 155 Ill. 2d R. 308. We granted plaintiff's application for leave to appeal. ANALYSIS Our scope of review is governed by Supreme Court Rule 308(a). 155 Ill. 2d R. 308(a). Rule 308 provides an avenue of permissive appeal for interlocutory orders where the trial court has deemed that they involve a question of law as to which there is substantial ground for -3-

1-08-1069 difference of opinion and where an immediate appeal from the order may materially advance the ultimate termination of the litigation. 155 Ill. 2d R. 308(a). We are generally limited to the question certified by the trial court, which, because it must be a question of law and not fact, is reviewed de novo. Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 153 (2007). In order to answer the certified question, we are initially called upon to construe Supreme Court Rule 216(c). 134 Ill. 2d R. 216(c). It is well settled that the construction of our rules is comparable to this court's construction of statutes. 134 Ill. 2d R. 2, Committee Comments ("the same principles that govern the construction of statutes are applicable to the rules"); Vision Point of Sale, Inc. v. Haas, 226 Ill. 2d 334, 342 (2007). The most reliable indicator of the supreme court's intent is the language used in the rule, which should be given its plain and ordinary meaning. In re Estate of Rennick, 181 Ill. 2d 395, 404-05 (1998). Rule 216(c) provides, in pertinent part, as follows: "Admission in the Absence of Denial. Each of the matters of fact *** of which admission is requested is admitted unless, within 28 days of service thereof, the party to whom the request is directed serves upon the party requesting the admission *** a sworn statement denying specifically the matters of which admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters." 134 Ill. 2d R. 216(c). The plain meaning of Rule 216(c) has been previously considered by our courts. In 2003, the appellate court in Moy v. Ng, 341 Ill. App. 3d 984 (2003), had occasion to address the -4-

1-08-1069 validity of a response to a request to admit verified by counsel instead of a party. The court held that although counsel may respond to pleadings on behalf of a party, the rules governing requests to admit require response by the parties and not by their attorney. Moy, 341 Ill. App. 3d at 989, citing Magee v. Walbro, Inc., 171 Ill. App. 3d 774, 780 (1988), and Johannsen v. General Foods Corp., 146 Ill. App. 3d 296 (1986). Subsequently, our supreme court revisited the plain meaning of Rule 216 again in Vision Point of Sale, Inc. v. Haas, 226 Ill. 2d 334, 355 (2007). Therein, the court overruled the decision of the appellate court in Moy, only to the extent that Moy held that "`the party responding to the Rule 216 request must sign the answer and provide the sworn-to statement.'" (Emphasis omitted) Vision Point, 226 Ill. 2d at 355, quoting Moy, 341 Ill. App. 3d at 990. The supreme court found that nothing in the rule required a party to both verify and sign a denial to a request to admit. Vision Point, 226 Ill. 2d at 355. Rather, the court found that "the plain language of the rule states that the party to whom the requests to admit are directed must serve upon the requesting party either `the sworn statement' denying the matters of which admission is requested or written objections which need not be sworn." Vision Point, 226 Ill. 2d at 355. There, the plaintiff's response was not signed, but was verified by its corporate representative in language that tracked section 1-109 of the Code of Civil Procedure. 735 ILCS 5/1-109 (West 2006). The court held that this verification alone without the additional signature was sufficient to comply with the requirements of the rule. Vision Point, 226 Ill. 2d at 355-56. To be clear, nothing in Vision Point overruled the point of law in Moy holding that the rules governing requests to admit require response by the parties and not by their attorney, as the supreme court in Vision Point had no occasion to consider the validity of a verification by an -5-

1-08-1069 attorney as opposed to a party. Thus, Moy and Vision Point, when viewed together, stand for the proposition that under Rule 216(c) (134 Ill. 2d R. 216(c)), a party, or in the case of a corporation, its corporate representative, must provide the sworn-to denial in response to a request for admission, and that a party's verification under section 1-109 of the Code (735 ILCS 5/1-109 (West 2006)) satisfies the proper form of the "sworn statement" requirement under the rule. We find support for this interpretation in the plain language of Rule 216. Rule 216 subsection (a) indicates that requests to admit are directed to a party. 134 Ill. 2d R. 216(a). Subsection (c) provides in part that the responding party may respond by serving a sworn statement of denial or sworn reasons why "he" can neither admit nor deny the requested facts. 134 Ill. 2d R. 216(c). The antecedent to which the pronoun "he" refers is the "party." Thus, the plain language of the rule confirms that the supreme court contemplated that the sworn statement was to be made by the party to whom the request was directed. We find further support for this general construction in the corresponding Federal Rules of Civil Procedure (Fed. R. Civ. P. 36). Prior to 1970, Rule 36 governing requests to admit had substantially similar language to our current rule. Authorities interpreting Rule 36 specifically provided that the response "had to be sworn and it had to be the response of the party itself rather than of its attorney." 8A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure 2d

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