Vision Point of Sale, Inc. v. Haas

Opinion

SIXTH DIVISION June 23, 2006

No. 1-05-2320

VISION POINT OF SALE, INC., an Illinois ) Appeal from the Corporation, ) Circuit Court of ) Cook County Plaintiff-Appellee, ) ) v. ) ) GINGER HAAS, an Individual, and LEGACY ) INCORPORATED, an Illinois Corporation, ) Honorable ) Peter Flynn, Defendants-Appellants. ) Judge Presiding

PRESIDING JUSTICE McNULTY delivered the opinion of the

court:

Defendants Ginger Haas and Legacy Inc. served requests to

admit on plaintiff Vision Point of Sale (Vision). No officer of

Vision signed the response Vision served on defendants, and

Vision did not file the response in court. Defendants moved to

deem their requests admitted. The trial court granted the

motion, but at a later hearing the court sua sponte vacated the

ruling and decided to allow Vision to file late its signed

responses to the requests. The court certified for immediate

review a question concerning limits on the factors a court may

consider when deciding whether to grant an extension of time for

filing a response to a request to admit facts.

We hold that the court may consider any facts that help it

"strike a balance between diligence in litigation and the 1-05-2320

interests of justice." United States v. $30,354.00 in United

States Currency, 863 F. Supp. 442, 445 (W.D. Ky. 1994). In

particular, the court need not restrict its attention to the

causes for the delay in the response to the request to admit.

However, we find that the trial court here did not follow

procedures mandated by Supreme Court Rule 183 (134 Ill. 2d R.

183) when it decided to allow the late filing. Accordingly we

vacate the order that gave rise to the certified question and we

remand for proceedings consistent with this opinion.

BACKGROUND

In July 2003 Haas quit the position she held with Vision and

began working for Legacy, a direct competitor of Vision. Vision

sued Haas and Legacy in February 2004 for tortious interference

with business relationships, breach of fiduciary duties, and

violation of the Illinois Trade Secrets Act (765 ILCS 1065/1 et

seq. (West 2002)).

After an evidentiary hearing in May 2004 the trial court

granted Vision a preliminary injunction in which the court

ordered Legacy to purge from its computer system all information

it obtained from Vision through Haas. Both Vision and Legacy

advanced proposals for methods of ensuring that Legacy abided by

the order. The court mapped a separate course in an effort to

respond to both parties' legitimate concerns. The order, dated

September 27, 2004, directed Legacy to purchase new computers and

to allow Vision's experts to observe the copying and transfer of

-2- 1-05-2320

files from the old computer to the new computers. The court also

ordered Legacy to pay a large share of the fees for Vision's

experts.

On December 14, 2004, Legacy and Haas faxed to Vision a set

of requests to admit. Vision sent its responses to the requests

to Legacy and Haas on January 12, 2005. An attorney for Vision

signed the responses, and an officer of Vision signed a

verification of the responses.

On April 1, 2005, Legacy and Haas moved to deem all of their

requests admitted because Vision did not file its responses with

the court and because only an attorney, and not an officer of

Vision, signed the responses. On April 6, 2005, the clerk of the

court file stamped a copy of Vision's responses; on April 26,

2005, the clerk stamped a second copy of Vision's responses, this

one bearing a signature, as well as a verification, of one of the

officers of Vision.

At the hearing on the motion to deem facts admitted, the

court denied Vision's oral motion for leave to file its signed

responses late. Because the officer of Vision had signed only

the verification of the responses served in January, and not the

responses themselves, and because Vision failed to file those

responses with the court in January, the responses did not meet

the requirements of Supreme Court Rule 216(c) (134 Ill. 2d R.

216(c)) and Rule 3.1(c) of the rules of the circuit court of Cook

County (Cook Co. Cir. Ct. R. 3.1(c) (eff. May 1, 1996)). See Moy

-3- 1-05-2320

v. Ng, 341 Ill. App. 3d 984 (2003). The trial court granted the

motion of Legacy and Haas to deem all of the requests admitted.

Also in April 2005, Vision petitioned for a rule to show

cause, asking the court to enter sanctions against Legacy for

Legacy's failure to pay fees as directed by the court's order of

September 27, 2004. Vision supported the motion with documents

showing that Vision had requested payment from Legacy of Legacy's

share of the fees for the work of Vision's experts in supervising

the transfer of files from Legacy's old computers to its new

computers.

On May 13, 2005, at oral argument on the motion for a rule

to show cause, Legacy admitted that it had not made any payments

under the order of September 27, 2004. Legacy argued that the

court should reconsider that order. The court said:

"You didn't come in on a motion to reconsider.

You didn't come in on a motion for a protective order.

You didn't come in on a motion to clarify.

You simply didn't pay ***.

* * *

*** I am greatly troubled by the tenor of Legacy's

response to the rule to show cause which consists not

of explaining some difficulty in compliance, but rather

in asserting that *** the underlying order of September

27th, 2004, is wrong. And therefore, Legacy shouldn't

have to obey it anyway.

-4- 1-05-2320

While it is true that that order is interlocutory,

it is also true that if Legacy really thought it didn't

understand the order or wanted to take issue with the

order, Legacy could have come in on a motion.

On the other hand, I am, as I indicated, not

impressed with plaintiff's argument that the only thing

Legacy can do is pay. ***

***

I also cannot avoid, in considering the events

leading up to the rule to show cause and in listening

to the parties' arguments this afternoon, comparing

what can fairly be characterized as Legacy's conscious

stubbornness with regard to the September 27th, 2004,

order with Vision Point's inadvertent and technical

non-compliance not with a Court order, but with Supreme

Court Rule 216 ***.

It is interesting that [Legacy and Haas], in

argument, linked the continuing validity of the

September 27th order and the allocations made in it to

the discussions that we've had in the last few weeks

regarding the requests to admit.

The link is not instantly self-evident, but I

agree with defendants that the link exists.

Supreme Court Rule 219 authorizes a virtually

unlimited variety of sanctions in the event a party

-5- 1-05-2320

fails to comply with a Court order ***.

* * *

I turn, then, to Supreme Court Rule 183. ***

* * *

*** Rule 183 does not *** limit good cause to good

cause for a failure to do an act on time. ***

*** The good cause is for granting the extension

of time.

And it seems to me that if we look at good cause

*** under all of the circumstances of the case, there

is good cause for the Court to *** allow a late filing

or correction of whatever violation has occurred.

***

*** [W]e have, on the part of Vision Point, a

technical and inadvertent failure to comply with the

requirements of Moy and we have, on the part of Legacy, what I do believe to be a settled policy of

recalcitrance with regard to the Court's Sepember 27th,

2004, order *** and if we look at all of that in the

context of the case law which says that the goal of all

discovery procedures is a trial on the merits *** and

that the purpose of sanctions should be not to punish,

but to encourage compliance, in my opinion, the fair

result here *** [is] to allow Legacy to present its

challenges to the September 27th order and to the

-6- 1-05-2320

invoices which Vision Point has submitted, but to

vacate the Court's order refusing to grant Vision Point

an extension under Rule 183 in order to clean up the

technical non-compliance in its responses to the

requests to admit."

The court entered a written order dated May 24, 2005, that

vacated the order that deemed requests admitted, and the court

expressly allowed Vision an extension of time to file its

responses to the requests for admissions. Vision responded to

the requests to admit, this time with the signature of Vision's

chief executive officer, and Vision filed its responses with the

court.

Legacy and Haas moved to reconsider the order of May 24,

2005. In the alternative they sought certification of a question

for appeal. The court denied the motion for reconsideration but

certified for appeal the following question:

"In determining whether 'good cause' exists under

Supreme Court Rule 183 for the grant of an extension of

time to remedy an unintentional noncompliance with a

procedural requirement, may the Court take into

consideration facts and circumstances of record which

go beyond the reason for the noncompliance?"

Haas and Legacy filed a timely application for leave to appeal

under Supreme Court Rule 308. 155 Ill. 2d R. 308. This court

granted the petition.

-7- 1-05-2320

ANALYSIS

The parties agree that our interpretation of Supreme Court

Rule 183 will determine our response to the certified question,

so we review the issue de novo. Atlantic Coast Airlines Holdings

v. Bloomington-Normal Airport Authority, 357 Ill. App. 3d 929,

933 (2005). The parties also ask us to "go beyond the question

of law presented and consider the propriety of the order that

gave rise to the appeal." Bright v. Dicke, 166 Ill. 2d 204, 208

(1995). We review discovery orders for abuse of discretion.

Moy, 341 Ill. App. 3d at 988. Supreme Court Rule 183 provides simply:

"This court, for good cause shown on motion after

notice to the opposite party, may extend the time for

filing any pleading or the doing of any act which is

required by the rules to be done within a limited

period, either before or after the expiration of the

time." 134 Ill. 2d R. 183.

The rule on its face does not limit the factors the court may

consider in determining whether a party has shown good cause for

extending the time for filing.

Our supreme court interpreted the rule in Bright, 166 Ill.

2d at 208. The defendant there sought leave to file a late

response to the plaintiff's requests to admit. The trial court

denied the defendant's motion and certified for appeal a question

concerning the effect of Rule 183 on the deadline for responses

-8- 1-05-2320

to requests to admit. Our supreme court held that Rule 183 gives

the trial court discretion to allow a party to serve a response

to requests to admit after the expiration of the 28 day period

specified in Rule 216. Bright, 166 Ill. 2d at 208. The court

added that the discretion to permit a late response "does not

come into play under the rule unless the responding party can

first show good cause for the extension." Bright, 166 Ill. 2d at

209. According to the court,

"mere absence of inconvenience or prejudice to the

opposing party is not sufficient to establish good

cause under Rule 183 and the companion provision of the

Code of Civil Procedure (735 ILCS 5/2-1007 (West

1992)). The moving party must assert some independent

ground for why his untimely response should be

allowed." Bright, 166 Ill. 2d at 209. The court in Bright did not purport to delineate all the

appropriate factors a trial court might take into account when

deciding whether to grant an extension of time under Rule 183.

The court held only that the lack of prejudice to a party

requesting admissions, standing alone, did not constitute good

cause for extending the time to respond to admissions. However,

the court cited with approval Sims v. City of Alton, 172 Ill.

App. 3d 694 (1988). In Sims the defendant failed to respond to

the plaintiffs' requests to admit. On the day of trial the

plaintiffs moved to deem the requests admitted. The defendant

-9- 1-05-2320

sought leave to file a late response, arguing that its attorney

had not received the requests to admit, many of the requests

improperly sought the admission of conclusions of law, the

requests concerned issues central to the case, and the plaintiffs

would suffer no prejudice from the late response. The trial

court granted the defendant leave to file the late response.

The appellate court held:

"[A] circuit court has wide discretion with regard

to the requests to admit and may allow a late filing in

order to prevent injustice. ***

*** Here plaintiffs' request to admit facts went

to the central issues of the case and the plaintiffs

failed to show that the filing of defendant's late

response prejudiced their case." Sims, 172 Ill. App. 3d at 698.

The court affirmed the decision to permit the late filing of

responses to the requests to admit.

Similarly, in Bluestein v. Upjohn Co., 102 Ill. App. 3d 672

(1981), the defendant's lawyer carelessly failed to respond to

requests to admit for nine months. The trial judge permitted the

late filing because the requests concerned the central issue in

the case. The judge said:

"'[I]f I were to find those requests have been admitted

by a lawyer's carelessness, without more, I would be

depriving a party of his right to a trial by jury on a

-10- 1-05-2320

basic issue in this case.'" Bluestein, 102 Ill. App. 3d

at 678.

The judge added that he would deem any request admitted if the

plaintiff could show prejudice due to the late response. The

appellate court affirmed, relying on the trial court's "inherent

power to prevent injustice." Bluestein, 102 Ill. App. 3d at 678.

Even when the appellate court has disallowed late responses

to requests to admit, the court has acknowledged the trial

court's discretion, and it has not purported to require strict

adherence to the 28-day limit. See Moy, 341 Ill. App. 3d at 991; Harris Bank St. Charles v. Weber, 298 Ill. App. 3d 1072, 1083

(1998); Magee v. Walbro, Inc., 171 Ill. App. 3d 774, 779-80

(1988); Johannsen v. General Foods Corp., 146 Ill. App. 3d 296,

300 (1986). We have found no court that limited the appropriate

considerations for granting an extension of time to the causes

for the delay.

Some of the factors considered in Sims and Bluestein range

well beyond the causes for the delay. The centrality of the

issues to the case, like the prejudice to the parties, does not

relate to the cause of the delay. The concerns addressed in Sims

and Bluestein relate directly to the interest in achieving

substantial justice between the parties.

Federal courts and the courts of other states have rules

that permit late filings for good cause, much like our Supreme

Court Rule 183. In addition to the factors emphasized in the

-11- 1-05-2320

Illinois cases, the foreign courts have considered the responding

party's good faith (Countee v. United States, 112 F.2d 447, 451

(7th Cir. 1940)), the conduct of the party requesting admissions,

especially in regard to other discovery (Marshall v. Sunshine &

Leisure, Inc., 496 F. Supp. 354, 356 (D. Fla. 1980)), and the

length of the delay beyond the statutory deadline (Holt v. Best,

750 S.W.2d 705, 708 (Mo. App. 1988)). We find that courts in

Illinois have authority to consider all of these factors, and any

other factors that bear on the balance the court must strike

between the need for efficient litigation and the interest of

achieving substantial justice between the parties. See generally

H. Henry, Annotation, Time for Filing Responses to Requests for

Admissions; Allowance of Additional Time, 93 A.L.R.2d 757 (1964).

Accordingly, we answer "yes" to the certified question.

To reach its decision here the trial court considered

factors outside the cause for the delay. Insofar as the court

did so, we find no error. But the judge allowed the extension

after deciding, sua sponte, to revisit his decision to deny

Vision leave to file late its responses to the requests to admit.

The judge looked to Rule 183 as authority for permitting the

late filing. At the hearing in April 2005, Vision orally moved

for leave to file its responses late. However, neither before

that hearing nor before the hearing on May 13, 2005, did Legacy

and Haas receive any notice of a motion pursuant to Rule 183.

Rule 183 requires a motion and notice to the party opposing

-12- 1-05-2320

the party who seeks an extension of time for filing. While the

trial court retains its inherent authority to reconsider its

interlocutory rulings (People v. Jones, 219 Ill. 2d 1, 23 (2006);

Geske v. Geske, 343 Ill. App. 3d 881, 885 (2003)), when the court

exercises its authority to act sua sponte, it still must follow

"otherwise applicable procedures, including notice of the

proposed judicial action and the opportunity to argue against

such action, as required in fairness to the litigants." People v. Edwards, 355 Ill. App. 3d 1091, 1100 (2005).

Neither Vision nor the trial court followed proper

notification procedures for a Rule 183 motion. Therefore, we

vacate the order of May 24, 2005, and we remand for the filing of

a written motion pursuant to Rule 183, with notice to Legacy and

Haas, giving them an opportunity for a hearing on their

objections to the motion. The court should take into

consideration any facts bearing on the balance between the need

for efficient litigation in full compliance with court rules and

the interests of achieving substantial justice on the merits for

the parties. The court need not restrict its attention to the

causes for the delay in the responses to the requests to admit.

The parties sought to raise other issues in their briefs.

Rule 308 generally allows this court narrow jurisdiction to

decide the question the trial court certified. Reich v.

Gendreau, 308 Ill. App. 3d 825 (1999). While we may review the

trial court's orders insofar as those orders gave rise to the

-13- 1-05-2320

certified question (Bright, 166 Ill. 2d at 208), we find that the

other proposed issues fall outside the proper scope of our review

under Rule 308. See Jones v. City of Carbondale, 217 Ill. App.

3d 85, 88 (1991).

Certified question answered; order vacated and cause

remanded.

TULLY and O'MALLEY, JJ., concur.

-14-