THIRD DIVISION
Date Filed:6/30/03

JUSTICE HALL delivered the opinion of the court:

The plaintiffs, Ngan Moy, Dick Moy, Tsun Mak and Wai YungMak, brought a complaint for damages against the defendants,Winsen NG, Chicago N.A. Construction Ltd., and Shirley Wong. Anex parte judgment was entered against Winsen Ng and Chicago N.A.Construction Ltd., and neither is a party to this appeal.

In their complaint, the plaintiffs alleged that Ms. Wongbreached her duties owed to the plaintiffs as a fiduciary and anescrowee. Following a bench trial, the trial court enteredjudgment against Ms. Wong in the amount of $118,269.12 plus courtcosts. Ms. Wong appeals.

On appeal, Ms. Wong contends that the trial court erred whenit denied her motion to strike the plaintiffs' answer to herrequest to admit facts pursuant to Supreme Court Rule 216 (134Ill. 2d R. 216). Because we find this issue to be dispositive ofthis appeal, we will confine our discussion of the facts to thosepertinent to that issue.

On July 28, 1999, Ms. Wong served her Rule 216 request toadmit facts and genuineness of documents on the plaintiffs.⁽¹⁾ OnAugust 10, 1999, the plaintiffs filed their answer to Ms. Wong'sRule 216 request. The answer was not signed or sworn to. Onthat same date, the plaintiffs filed another answer to the Rule216 request. However, this answer was signed and verified by theplaintiffs' attorney. On October 13, 1999, Ms. Wong filed amotion to strike the plaintiffs' answer to her Rule 216 request. On November 17, 1999, a hearing was held on the motion tostrike. The plaintiffs' attorney did not dispute that the copyof the plaintiffs' answer to the Rule 216 request sent to Ms.Wong's attorneys was unsigned and unsworn to, but noted that hehad filed the original, which he had signed and verified, withthe circuit court. The plaintiffs' attorney pointed out that thelocal circuit court rules required that the answer be filed withthe circuit court. In denying Ms. Wong's motion to strike, JudgeSheldon Gardner stated as follows:

"Now, I don't have to get to the point of whether ornot verification is required because the standard in ourstate is that general rules are modified by local rules. The local rules call for a filing, there is no issue thatthe document filed was verified.

I think that Mr. Segal's [Ms. Wong's attorney]arguments are not well taken in that they are dealing withthe timeliness of the issue, not with the issue ofverification and the remedy of being verified. If the localcopy were not verified, our issue - - the final copy werenot verified, our issue would be different."

On June 27, 2000, Judge Loretta Douglas denied a motion inlimine filed by Ms. Wong but ordered the plaintiffs to serve anadditional copy of the request to admit facts, signed by"Plaintiff," on Ms. Wong's attorney prior to trial.⁽²⁾

The record then reflects another answer to the Rule 216request, file-stamped August 10, 1999, was filed. This one wassigned by the plaintiffs' attorney, but verified by Ngan Moy, oneof the plaintiffs. The proof of service states that it wasserved on July 3, 2000, on Ms. Wong's attorneys, having been"previously served filed" on August 10, 2000.⁽³⁾

On September 11, 2000, Ms. Wong filed a second motion inlimine to strike the plaintiffs' answer to her Rule 216 request,filed on July 3, 2000. Ms. Wong argued that the plaintiffs hadnot shown "good cause" to allow them to serve their answer andthat the document still did not conform to the signing and sworn-to requirements of Rule 216. On September 15, 2000, Ms. Wongfiled a third motion in limine. In this motion, Ms. Wongacknowledged receiving a copy of the plaintiffs' answer, signedby plaintiffs' attorney and verified by plaintiff Ngan Moy. Ms.Wong again argued that the "good cause" requirement was notfulfilled by the plaintiffs, that the answer contained untruestatements in regard to the filing and service of the answer andthat the answer was not signed by all four plaintiffs.

On September 15, 2000, the plaintiffs filed a response toMs. Wong's motions in limine and for sanctions pursuant toSupreme Court Rule 137 (155 Ill. 2d R. 137).

On September 19, 2000, Judge Peter Flynn denied Ms. Wong'smotions in limine.⁽⁴⁾

Ms. Wong contends that the trial court erred when it deniedher motion to strike the plaintiffs' answer to her request toadmit facts. Ms. Wong maintains that the plaintiff failed tocomply with the requirements of Rule 216(c) (134 Ill. 2d R.216(c)).

A reviewing court will not disturb a trial court's ruling ondiscovery matters unless there is a manifest abuse of discretion. Mutlu v. State Farm Fire & Casualty Co., 337 Ill. App. 3d 420,432, 785 N.E.2d 951, 961 (2003). However, the interpretation ofa statute is a question of law, which this court reviews de novo. Advincula v. United Blood Services, 176 Ill. 2d 1, 12, 678 N.E.2d1009, 1015 (1996); Albazzaz v. Department of ProfessionalRegulation, 314 Ill. App. 3d 97, 105, 731 N.E.2d 787, 793 (2000).

Under Rule 216, a party may serve a written request on another party to admit the truth of any specified relevant factset forth in the request. 134 Ill. 2d R. 216(a). Rule 216(c)provides in pertinent part as follows:

"Each of the matters of fact and the genuineness ofeach document of which admission is requested is admittedunless, within 28 days after service thereof, the party towhom the request is directed serves upon the partyrequesting the admission either (1) a sworn statementdenying specifically the matters of which admission isrequested or setting forth in detail the reasons why hecannot truthfully admit or deny those matters or (2) writtenobjections on the ground that some or all of the requestedadmissions are privileged or irrelevant or that the requestis otherwise improper in whole or in part. *** Any objectionto a request or to an answer shall be heard by the courtupon prompt notice and motion of the party making therequest." 134 Ill. 2d R. 216(c)

The failure to file a timely response to a request to admitfacts - including the "ultimate" facts of a case - in accordancewith Rule 216(c) results in the admission of those facts. Tires'N Tracks, Inc. v. Dominic Fiordirosa Construction Co., 331 Ill.App. 3d 87, 91, 771 N.E.2d 612, 616 (2002). A response denyingthe facts that is neither timely nor sworn fails to comply withthe rule. Tires 'N Tracks, Inc., 331 Ill. App. 3d at 91, 771N.E.2d at 616. An admission pursuant to a request to admit factsoperates as a judicial admission that is consideredincontrovertible and has the effect of withdrawing a fact fromcontention. Tires 'N Tracks, Inc., 331 Ill. App. 3d at 91, 771N.E.2d at 616.

The plaintiffs' answer to Ms. Wong's Rule 216 request wassigned by the attorney for the plaintiffs and verified by himpursuant to section 1-109 of the Code of Civil Procedure (theCode) (735 ILCS 5/1-109 (West 1998) (verification of a pleadingmay be done by certification unless otherwise provided by thesupreme court rules)).

An attorney having personal knowledge of the facts set outin a pleading is not precluded from verifying that document. Schwartz v. Great Central Insurance Co., 188 Ill. App. 3d 264,269, 544 N.E.2d 131, 133-34 (1989). However, while counsel mayrespond to pleadings, Rule 216 requires response by the parties. Magee v. Walbro, Inc., 171 Ill. App. 3d 774, 780, 525 N.E.2d 975,979 (1988)(in addition to its failure to be in writing, the courtalso rejected the argument that having the attorney respond tothe request to admit facts was proper because the attorney hadbeen allowed to respond to the allegations of an affirmativedefense); see also Johannsen v. General Foods Corp., 146 Ill.App. 3d 296, 496 N.E.2d 544 (1986) (answer to request to admitsigned but not sworn to by the answering party's attorney did notcomply with the requirement that denials, in whole or in part, beby the party answering the request).⁽⁵⁾ In this case, the answersare clearly those of one or more of the plaintiffs, not theirattorney.

In addition, Rule 216(c) requires that the party respondingto the request to admit facts serve the sworn statement denyingthe facts on the party requesting the admission. In this case,the plaintiffs acknowledge that they served an unsigned andunsworn copy of their answer to Ms. Wong's Rule 216 request onMs. Wong's attorneys. The plaintiffs maintain that they compliedwith this requirement by filing the original "sworn" answer withthe clerk of the circuit court as required by the local rules. See Cook Co. Cir. Ct. R. 3.1(c) (eff. May 1, 1996).

Rule 3.1(c) provides in pertinent part as follows:

"Requests for admission of fact shall be filed with theClerk of the Circuit Court. Within twenty-eight (28) daysafter service of the requests, the answering party shallserve upon the party requesting the admission and file withthe Clerk of the Circuit Court either a sworn statementdenying specifically the matters of which admission isrequested or setting forth in detail the reasons why theparty cannot truthfully admit or deny those matters or awritten objection to the request." (Emphasis added.) CookCo. Cir. Ct. R. 3.1(c) (eff. May 1, 1996).

A local rule has the force of a statute and is binding onthe trial court as well as the parties. Premier ElectricalConstruction Co. v. American National Bank of Chicago, 276 Ill.App. 3d 816, 834, 658 N.E.2d 877, 891 (1995) (trial court mustfollow rules of notice when those rules are not in conflict with a statute or a supreme court rule). However, our supreme courtrules control over a local circuit court rule. Illinois SupremeCourt Rule 21(a) (134 Ill. 2d R. 21(a)) vests circuit courts withthe power to adopt local rules governing civil and criminal casesas long as (1) they do not conflict with supreme court rules orstatutes; and (2) so far as practical, they are uniformthroughout the state. Phalen v. Groeteke, 293 Ill. App. 3d 469,470, 688 N.E.2d 793, 794 (1997).

In any event, the requirements of Rule 3.1(c) are not inconflict with those of Rule 216. Both rules require that theanswer to a Rule 216 request be sworn to and served on the partyrequesting the admissions. While Rule 216 does not contain afiling requirement, Rule 3.1(c) requires that the sworn answersbe filed with the clerk of the circuit court and served upon therequesting party. Therefore, the plaintiffs' filing of theiranswer to Ms. Wong's Rule 216 request with the circuit court butserving an unsigned and unsworn-to copy on Ms. Wong's attorneysfailed to satisfy the requirements of either Rule 216(c) or Rule3.1(c).

We hold, therefore, that Rule 216(c) requires that the partyresponding to the Rule 216 request must sign the answer andprovide the sworn-to statement and that the signed and sworn-tocopy of the answer served on the requesting party must be signedand sworn to by the party. The signature of and verification bythe party's attorney on the answer to a Rule 216 request insteadof the party's signature does not comply with Rule 216(c). Wefurther reiterate that filing a signed and sworn-to original withthe circuit court but serving an unsigned and unsworn-to copy ofthe answers to a Rule 216 request to admit facts does not complywith either Rule 216(c) or Rule 3.1(c). Therefore, the trialcourt erred when it denied Ms. Wong's motion to strike theplaintiffs' answers to Ms. Wong's Rule 216 request.

The plaintiffs then point out that, prior to trial but afterthe expiration of the 28-day requirement of Rule 216, they filedan answer to the request to admit facts which was sworn to by oneof the plaintiffs.⁽⁶⁾ This answer was again signed by theplaintiffs' attorney, but verified by plaintiff Ngan Moy.However, the answer fails to comply with Rule 216(c) in that itis signed by the plaintiffs' attorney, not by one or more of theplaintiffs.

Even if we overlook the fact that the plaintiffs' attorneysigned the answer, since one of the plaintiffs verified theanswer, we are of the opinion that the trial court abused itsdiscretion in allowing the plaintiffs to file an answer after the28-day requirement of Rule 216(c) and after the 30 days allowedby the trial court.

Cases interpreting Rule 216 give the trial court somediscretion in allowing delays, with standards ranging from strictadherence to the 28-day limit to wide discretion. Magee, 171Ill. App. 3d at 779, 525 N.E.2d at 978-79. A court has thediscretion to permit a party to file a response to a request foradmission of facts after the 28-day time limit but only if theparty has shown "good cause" for an extension of time. HarrisBank St Charles v. Weber, 298 Ill. App. 3d 1072, 1083, 700 N.E.2d722, 730 (1998). A lack of prejudice to the opposing party doesnot constitute "good cause." Weber, 298 Ill. App. 3d at 1083,700 N.E.2d at 730.

In this case, without explanation, the plaintiffs failed tocomply with the signature and verification requirements withinthe time requirements of Rule 216(c) and, therefore, failed toprovide a "good cause" basis for the exercise of the trialcourt's discretion. We conclude that the trial court abused itsdiscretion in allowing the plaintiffs to file a sworn answer toMs. Wong's request to admit facts after the expiration of the 30days permitted them by the trial court.

The plaintiffs then argue that Ms. Wong waived any right torely on the admissions contained in the answer to her Rule 216request because, at trial, she introduced evidence on the issuesinvolved in her Rule 216 request.

Where facts have been admitted pursuant to a Rule 216request and the party presents evidence at trial to prove thosefacts, the admissions are waived, and the party must rely on thestrength of the evidence produced at trial. Magee, 171 Ill. App.3d at 780, 525 N.E.2d at 979. However, it would be unjust toapply that rule where a trial court erroneously has allowed anuntimely and improper response to a request to admit facts, sincethe party requesting the admissions is left with little choicebut to present evidence at trial. See Magee, 177 Ill. App. 3d at780, 525 N.E.2d at 979.

Finally, the plaintiffs argue that Ms. Wong's request toadmit facts was improper in form and in scope and, therefore, sheshould be barred from using any of the admissions. However, theplaintiffs failed to object to the request to admit facts asrequired by Rule 216 and therefore waived any objection to therequest. See Banks v. United Insurance Co. of America, 28 Ill.App. 3d 60, 328 N.E.2d 167 (1975) (failure to return writtenobjections to the requesting party with the 28-day periodpermitted for reply waived any otherwise valid objection to therelevancy of the admissions requested in the notice).

Since the trial court erred in denying Ms. Wong's motion tostrike the plaintiffs' answer to her Rule 216 request foradmission of facts, we conclude that this case must be remandedfor a new trial. On remand, the facts contained in Ms. Wong'srequest to admit facts will be deemed admitted. Deciding thiscase as we do, we need not address the remaining issues raised byMs. Wong.

However, we note that in this appeal, the plaintiffsrequested that this court increase the amount of the judgmentawarded to them but did not file a cross-appeal. The necessityfor filing a cross-appeal arises where the appellee requests thereversal or modification of the judgment below. Mid-WestNational Bank of Lake Forest v. Metcoff, 23 Ill. App. 3d 607,610, 319 N.E.2d 336, 339-40 (1974). Therefore, this court lacksjurisdiction to consider a modification of the judgment.

The judgment of the circuit court is reversed and the causeremanded.

Reversed and remanded with directions.

SOUTH, P.J., and HOFFMAN, J., concur.

1. The plaintiffs note that discovery had been closed at thetime Ms. Wong filed her Rule 216 request. However, the trialcourt entered an order requiring the plaintiffs to respond to theRule 216 request within 30 days.

2. A copy of this motion in limine does not appear to becontained in the record on appeal.

3. While Ms. Wong attempts to carve a separate issue as to theAugust 10, 2000, date, the plaintiffs' explanation that it was atypographical error as to the year is reasonable under thecircumstances.

4. Judge Flynn's September 19, 2000, order indicates that aseparate order would be issued but no such order appears in therecord. While the September 19, 2000, order did not specificallyaddress the request for Rule 137 sanctions, Judge Flynn's July30, 2001, judgment order stated that the order disposed "of allremaining claims in this action and is a final judgment."

5. Johannsen is incorrectly cited in Ms. Wong's brief asJohnson v. General Foods Corp., 416 Ill. App. 3d 296.

6. We note that the trial court allowed the plaintiffs 30days, rather than the 28 days required under Rule 216(c), to filetheir answer. However, there is no suggestion that theplaintiffs were excused from complying with any of the otherrequirements of Rule 216(c).