text:
    MILDRED SMOOT, d/b/a Smoot Oil Company, Plaintiff-Appellant, v. HAROLD J. KNOTT, d/b/a H & K Trucking Service, Defendant-Appellee.
    Fifth District
    No. 5—89—0232
    Opinion filed August 8, 1990.

      Sara Nierste, of Ronald E. Osman & Associates, of Dongola, for appellant.
    Charles C. Hines and Charles Cavaness, both of Carbondale, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Mildred Smoot filed her complaint on June 13, 1985, against Harold Knott, d/b/a H & K Trucking Service, alleging that Knott was indebted to Smoot in the amount of $19,740.95 for fuel purchased on open account from her. Smoot alleged that said fuel was furnished to Knott and that she performed all conditions to be performed on her part. On January 9, 1989, the court entered an order granting defendant’s motion for summary judgment, and plaintiff appeals.

There were numerous pleadings filed in this case. Without detailing each pleading, we will discuss those which are necessary to our analysis of the issues.

Knott was served with plaintiff’s complaint at his Arkansas residence. He had moved to Arkansas sometime prior to service of the complaint, and continued to reside in Arkansas until his death on July 30, 1987. Upon Knott’s death, representatives of his estate were substituted as party-defendant in this cause of action, but we will refer to the defendant as Harold Knott (Knott) throughout.

Knott filed a special and limited appearance on July 26, 1985, contesting service and jurisdiction over him, but the court denied his motion. Knott answered Smoot’s complaint, denying that he does business as H & K Trucking Service, that he had an open account with Smoot, or that he owed the money claimed due. Knott’s answer to the complaint neither admitted nor denied the allegations that Smoot furnished fuel as shown by an attached exhibit and performed all contractual duties that were required of her. On December 6, 1985, Smoot served a request to admit facts as to the following allegations: (1) that Smoot furnished gas, fuel oil and other products to Knott as shown by exhibit; (2) that Knott received the products in the amounts shown; and (3) that the credit shown reflects payments made by Knott on account.

Four months after serving defendant with the request to admit facts, plaintiff filed a motion for summary judgment arguing that since defendant had neither admitted nor denied her request to admit facts, the facts were deemed admitted, thereby resolving any issues of material fact, and thus entitling plaintiff to judgment as a matter of law. The court denied Smoot’s motion for summary judgment on May 19, 1986, and gave Knott until June 6, 1986, to file pleadings. On June 13, 1986, plaintiff once again filed a motion for summary judgment, reiterating the allegations of the motion for summary judgment filed April 17, and noting that Knott had failed to comply with the court’s order directing Knott to file pleadings by June 6, 1986. The court apparently denied plaintiff’s second motion for summary judgment on July 23,1986.

On August 7, 1986, Knott filed an amended answer and affirmative defense, raising for the first time the defense that he was not a sole proprietor, but that H & K Trucking was at all times since August 31, 1961, an Illinois corporation, and that Knott did not personally maintain an open account with Smoot. Smoot denied such allegations in her answer to this affirmative defense. On May 24, 1988, Smoot filed a third motion for summary judgment, alleging that Knott: (1) in his answer to the complaint neither admitted nor denied that Smoot furnished the fuel to him; (2) in his answer neither admitted nor denied that Smoot performed all conditions required to be performed; (3) neither objected to nor replied to Smoot’s request to admit; and (4) never complied with the court’s order to compel discovery. No ruling was made by the court on plaintiff’s third motion for summary judgment.

In September of 1988, Knott filed an answer to Smoot’s request to admit and a certificate of compliance with Supreme Court Rule 214 (107 Ill. 2d R. 214). Knott also filed a motion for summary judgment and a motion for leave to file a second affirmative defense. Both motions were premised on section 13 — 205 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 205), which provides that actions on unwritten contracts “shall be commenced within 5 years next after the cause of action accrued.” The court allowed defendant to file his second affirmative defense. In her answer to Knott’s affirmative defense and objection to defendant’s motion for summary judgment, Smoot acknowledged that her cause of action was not filed within five years after its accrual. However, plaintiff argued that Knott’s absence from Illinois and nonresidency tolled the five-year statute of limitations. The trial court granted Knott’s motion for summary judgment.

Turning first to Knott’s motion for summary judgment, it was obviously based upon the facts set forth in Smoot’s verified complaint. Both parties agree that the facts set forth in the complaint are, therefore, judicial admissions that may properly be considered for purposes of summary judgment. (See Gowdy v. Richter (1974), 20 Ill. App. 3d 514, 520, 314 N.E.2d 549, 554.) The facts are: (1) that between May 10, 1977, and June 30, 1978, Knott purchased fuel from Smoot on an open account; (2) that the last action taken on the account occurred June 6, 1979, when Smoot applied a credit to the account; and (3) that Smoot’s verified complaint against Knott was filed June 13,1985.

It is undisputed that over five years transpired between the time plaintiff filed her complaint and the time there was any activity on the account. Knott, relying on section 13 — 205 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 205), argued that plaintiff’s cause of action was barred by the statute of limitations. Section 13 — 205 provides in pertinent part: “actions on unwritten contracts, expressed or implied *** shall be commenced within 5 years next after the cause of action accrued.” Plaintiff has not disputed the applicability of the five-year statute of limitations, but has asserted that the statute of limitations was tolled by Knott’s absence from Illinois, pursuant to section 13 — 208 of the Code of Civil Procedure:

“(a) If, when the cause of action accrues against a person, he or she is out of the state, the action may be commenced within the times herein limited, after his or her coming into or return to the state; and if, after the cause of action accrues, he or she departs from and resides out of the state, the time of his or her absence is no part of the time limited for the commencement of the action.
(b) For purposes of subsection (a) of this Section, no person shall be considered to be out of the State or to have departed from the State or to reside outside of the State during any period when he or she is subject to the jurisdiction of the courts of this State ***.” Ill. Rev. Stat. 1987, ch. 110, par. 13-208.

In response, Knott argues that section 13 — 208(b) precluded the tolling of Smoot’s cause of action since Knott was subject to the jurisdiction of Illinois pursuant to the Illinois long-arm statute. (Ill. Rev. Stat. 1987, ch. 110, par. 2—209.) Smoot argues that she could not and did not obtain personal jurisdiction over Knott until Knott entered a general appearance. We are unpersuaded by Smoot’s argument. Smoot was successful in bringing Knott within the jurisdiction of the courts of this State. Service of Smoot’s complaint was made on Knott at his Arkansas residence. Knott filed a special and limited appearance contesting service of the complaint and jurisdiction over him. The court rejected Knott’s contention, and it is clear that Knott was subject to personal service outside of Illinois. (Ill. Rev. Stat. 1987, ch. 110, par. 2—209(a)(1).) Under these circumstances, we find that Knott was not “out of state” so as to toll the statute of limitations. See Higgenbottom v. Van Veiga (1978), 59 Ill. App. 3d 189, 191, 375 N.E.2d 454, 456.

Smoot cites Beckmire v. Ristokrat Clay Products Co. (1976), 36 Ill. App. 3d 411, 343 N.E.2d 530, in support of her position. Beck-mire is not controlling since it construed the predecessor to the present statute which did not contain the exception covering the situation where the defendant is subject to service under the long-arm statute.

A motion for summary judgment may be granted when the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005; Addison v. Whittenberg (1988), 124 Ill. 2d 287, 294, 529 N.E.2d 552, 555.) When the evidence shows no material issue of fact has been raised, the moving party is entitled to judgment as a matter of law. (Artis v. Fibre Metal Products (1983), 115 Ill. App. 3d 228, 231-32, 450 N.E.2d 756, 758.) All facts in the complaint were, as noted above, admitted as true. The only issue left for determination by the trial court was whether Knott’s absence from Illinois tolled the statute of limitations. In view of our holding that the statute of limitations was not tolled in this case, the trial court ruled correctly on the summary judgment motion in favor of Knott.

Ordinarily our ruling on the above issue would conclude the case in favor of the defendant, but that is not true under the facts of this case. A serious problem arose in this case because of the delay between the filing of the plaintiff’s motions for summary judgment and the court’s ruling upon them. Almost three years elapsed between the time that the plaintiff filed its first motion for summary judgment based upon the defendant’s failure to respond to its request to admit and the court’s ruling upon the defendant’s motion for summary judgment. While we are not by this opinion imposing a definite rule that trial courts must rule on pending motions in any certain order or within any certain time, the difficulties engendered by the delay in rulings in this case will become obvious.

In her motions for summary judgment Smoot among other things argued that pursuant to Supreme Court Rule 216 (107 Ill. 2d R. 216), Knott admitted the debt by failing to respond to Smoot’s request to admit facts. Smoot’s first request to admit, filed December 6, 1985, sought admission of the following:

“1. That plaintiff furnished gasoline, fuel oil, and other products to defendant in the amounts and on the dates shown by Exhibit A attached to plaintiff’s complaint;
2. That defendant received gasoline, fuel oil, and other products in the amounts and on the dates shown by Exhibit A attached to plaintiff’s complaint;
3. That the amounts of credit listed in Exhibit A of plaintiff’s complaint accurately reflect payments made by defendant on account.”

Knott did not respond to any of Smoot’s requests for admission of facts until September 19, 1988, almost three years after they were first filed. In response to each of the purported facts, Knott objected on the grounds that it “is one of the issues of controversy in this cause.” It was also at this time that Knott filed his motion for summary judgment based upon the statute of limitations. In her motions for summary judgment, and on appeal, Smoot contends that not only were Knott’s objections untimely, but that the objections to each request were improper as not being in accord with the full disclosure requirements of discovery.

The first question this court must address is whether the trial court had discretion to extend the time to respond to the request to admit facts. In addressing this question, we must note that the answer may well depend on the location of the case and when it was decided, or in the words of the Frank Sinatra classic, it may depend upon “Where or when.”

Rule 216 provides:

“(c) Admission in the Absence of Denial. Each of the matters of fact and the genuineness of each document of which admission is requested is admitted unless ***.” (107 Ill. 2d R. 216(c).)

While this statement is seemingly straightforward, even the historical and practice notes which accompany it give different answers to the question of the trial court’s discretion. Two quotes from these notes illustrate the problem:

“Prior to 1956, the rule on admissions of facts (rule 18) penalized failure to respond to the request for admissions only by giving the court discretion to assess against the delinquent party the costs and expenses of proving the matter on which admission was sought. In 1956 the rule was rewritten to provide that the effect of ignoring the request to admit was that the matters contained therein automatically stood admitted.” (Ill. Ann. Stat., ch. 110A, par. 216, Historical and Practice Notes, at 369 (Smith-Hurd 1985).)
“The court has the power to allow the filing of requests even after the time period provided in rule 216 has passed without extension, pursuant to its general power to control discovery, Bluestein v. The Upjohn Company, 102 Ill. App. 3d 672, 430 N.E.2d 580, 58 Ill. Dec. 548 (1st Dist. 1981), although it would be most unwise for a litigant to rely on the court’s willingness to' exercise that power.” (Ill. Ann. Stat., ch. 110A, par. 216, Historical and Practice Notes, at 367 (Smith-Hurd 1985).)

The first of these quotes suggests no discretion; the second suggests discretion under the court’s general power to control discovery (though the second quote refers to “requests,” it is now clear that “answers” to the request were what were considered (see Ill. Ann. Stat., ch. 110A, par. 216, Supplement to Historical and Practice Notes, at 98 (Smith-Hurd Supp. 1990)).

The committee comments to the 1985 amendment to Rule 216 provide:

“Subparagraph (e) was amended in 1985 to resolve an apparent conflict about whether admissions are carried over into subsequent cases between the same parties, involving the same subject matter, as are the fruits of other discovery activities (see Rule 212(d)). Relief from prior admissions is available to the same extent in the subsequent action as in the case which was dismissed or remanded." (Emphasis added.) (Ill. Ann. Stat., ch. 110A, par. 216, Committee Comments, at 98 (SmithHurd Supp. 1990).)

The emphasized language may suggest either discretion or no discretion depending upon the interpretation the rule has received by the courts.

In 1958 the supreme court held in City of Champaign v. Roseman (1958), 15 Ill. 2d 363, 155 N.E.2d 34:

“We see no error in the entry of judgment on the pleadings. The only issues of fact raised by the answer were admitted by failure to deny or object to the requests for admission of facts provided for in Rule 18. Thus, all allegations of the complaint having been admitted, there were no remaining issues of fact.” (Roseman, 15 Ill. 2d at 365, 155 N.E.2d at 36.)

Unfortunately for our purposes, Roseman does not indicate whether any relief from the automatic application of Rule 216 was sought in the trial court. The trial and appellate courts have been faced with such requests for relief and have reached widely diverging results, both among the districts and within the districts. A brief review of the cases, by district, and where applicable by division, follows.

FIRST DISTRICT

Iversen v. Iversen (1st Dist., 2d Div. 1960), 28 Ill. App. 2d 45, 169 N.E.2d 822, referred to Roseman, quoted the no-discretion portion of the historical and practice notes referred to earlier, and held that the facts should be considered admitted. While Iverson would apparently fall into the no-discretion camp, it should be pointed out that the trial court had granted the responding party two extensions of time to respond, and in spite of this fact, the party had never filed any response to the request to admit facts.

Banks v. United Insurance Co. of America (1st Dist., 3d Div. 1975), 28 Ill. App. 3d 60, 328 N.E.2d 167, a case often cited for the no-discretion position, certainly contains language to that effect: “Unless the party, to whom a notice to admit is directed, conforms his response to the framework provided by the Rule, ‘[ejach of the matters of fact and the genuineness of each document of which admission is requested is admitted ***.’ ” (Banks, 28 Ill. App. 3d at 63, 328 N.E.2d at 170, quoting Ill. Rev. Stat. 1971, ch. 110A, par. 216(c).) It should be noted, however, that in Banks the plaintiff did not respond for five months, filed unsworn answers, and her answers failed to specifically deny or adequately explain her refusal to deny. Banks noted that each of the above reasons, by itself, required the requested facts to be deemed admitted.

Banks was relied upon in Liepelt v. Norfolk & Western Ry. Co. (1st Dist., 1st Div. 1978), 62 Ill. App. 3d 653, 378 N.E.2d 1232, rev’d on other grounds (1980), 444 U.S. 490, 62 L. Ed. 2d 689, 100 S. Ct. 755, which found the facts properly deemed admitted when the defendant railroad failed to set forth in detail the reasons it could neither admit nor deny basic measurements, weights, and braking distances upon which it had conducted tests, a position the appellate court found “incomprehensible.” (Liepelt, 62 Ill. App. 3d at 667, 378 N.E.2d at 369.) Liepelt and Banks were both relied upon in Roth v. Carlyle Real Estate Limited Partnership VII (1st Dist., 2d Div. 1984), 129 Ill. App. 3d 433, 472 N.E.2d 836.

The first case in the first district to apparently break with the no-discretion rule was Redmond v. Central Community Hospital (1st Dist., 5th Div. 1978), 65 Ill. App. 3d 669, 382 N.E.2d 95, which reversed a summary judgment for the defendant which had been based on the facts deemed admitted by the plaintiffs late response. We use the word “apparently” because the following statement from Redmond is dieta:

“While it is true that some courts have declined to relieve a tardy litigant from being bound by his failure to respond to a Rule 216 request within the 28 days provided (City of Champaign v. Roseman (1958), 15 Ill. 2d 363, 155 N.E.2d 34; Banks v. United Insurance Co. of America (1975), 28 Ill. App. 3d 60, 328 N.E.2d 167; Crum v. Gulf Oil Corp. (1973), 12 Ill. App. 3d 988, 299 N.E.2d 820), we believe that where the failure to respond within the time provided is the result of circumstances beyond the control of the litigant, such as the death or severe disability of counsel, the court could allow the filing of a late response under its inherent power to prevent injustice.” (Redmond, 65 Ill. App. 3d at 678, 382 N.E.2d at 102.)

The basis of the court’s ruling was that there was no objection to the late filing in the trial court.

Two 1981 cases from different divisions of the first district serve as well as any to illustrate the divergence of opinions. Bullock v. Adams (1st Dist., 3d Div. 1981), 102 Ill. App. 3d 379, 430 N.E.2d 534, cert. denied (1982), 457 U.S. 1134, 73 L. Ed. 2d 1351, 102 S. Ct. 2961, cited Banks in holding that the facts were deemed admitted. While technically Bullock was dismissed because the plaintiff’s new counsel refused to proceed with the case as long as the facts stood admitted, the underlying basis was the earlier ruling on the request to admit. In Bluestein v. Upjohn Co. (1st Dist., 4th Div. 1981), 102 Ill. App. 3d 672, 430 N.E.2d 580, decided less than a month after Bullock, the fourth division clearly broke with the no-discretion rule. In Bluestein the trial court allowed Upjohn to file responses approximately nine months after the request was served, but indicated that any fact to which the plaintiff could show prejudice would be deemed admitted. The plaintiff argued on appeal that (1) the trial court had no discretion to allow the filing of the late response, and (2) even if it did have such discretion, the plaintiff had shown prejudice by a late response because the treating doctor died in the nine-month interim. While acknowledging Banks and Crum, v. Gulf Oil Corp. (5th Dist. 1973), 12 Ill. App. 3d 988, 299 N.E.2d 820, as authority for the no-discretion position, the fourth division held that requests to admit were a discovery tool and the trial court had wide discretion in allowing late responses, citing Illinois State Toll Highway Authority v. Humphrey Estate (2d Dist. 1978), 62 Ill. App. 3d 316, 379 N.E.2d 626, and that it could allow late filing to prevent injustice, citing Redmond. The court also held that no prejudice was shown even though the plaintiff’s treating doctor had died in the intervening months.

The third division, the source of Banks, broke from the Banks ranks without mentioning Banks in Thomas v. Village of Westchester (1st Dist., 3d Div. 1985), 132 Ill. App. 3d 190, 477 N.E.2d 49. Thomas may have been decided on a technical basis:

“Here, the proof of service attached to plaintiffs’ request to admit indicates that the affiant mailed the request to defendants’ attorneys, but does not indicate the complete address which appeared on the envelope. Under the circumstances, we conclude that the court erred in striking defendants’ answer to plaintiffs’ request to admit.” (Thomas, 132 Ill. App. 3d at 195, 477 N.E.2d at 53.)

However, a discussion preceding the above quotation makes it clear that Thomas approves granting the trial court discretion under several sets of circumstances: (1) where the failure to timely respond is beyond the control of the litigant, such as death or severe disability of counsel, citing Redmond-, (2)(a) in order to prevent manifest injustice, citing Bluestein or (b) where the facts concern the central issue of the case and the requesting party is unable to show prejudice, citing Bluestein; or (3) where the elements of (2)(b) were combined with the fact that the party was in the process of changing attorneys when the request was filed, citing Daleanes v. Board of Education of Benjamin Elementary School District 25 (2d Dist. 1983), 120 Ill. App. 3d 505, 457 N.E.2d 1382.

Another first district case is Magee v. Walbro, Inc. (1st Dist., 1st Div. 1988), 171 Ill. App. 3d 774, 525 N.E.2d 975, which held that an oral response given approximately three months late and shortly before trial began was improper and that therefore the facts should have been deemed admitted. While Magee deemed the facts admitted under the circumstances of that case, the language of the opinion suggests that it recognizes discretion to extend the time:

“The requested admissions could have been deemed admitted 28 days after their service, and should have been deemed admitted by the beginning of trial almost four months after service, when the responses were allowed.” (Emphasis added.) Magee, 171 Ill. App. 3d at 780, 525 N.E.2d at 979.

The final first district case to be discussed is Koca v. Gavin (1st Dist., 6th Div. 1990), 199 Ill. App. 3d 665, which first distinguishes several cases that have recognized discretion, then states that the Banks line of cases is more persuasive, and concludes:

“In the instant case, defendant has argued that he prepared for trial based upon the unanswered requests to admit, and because he had relied upon plaintiff’s admissions, he did not present the testimony of an expert witness to counter the evidence presented by plaintiff’s expert. Plaintiff has never filed a sworn statement, timely or otherwise, denying any of the facts asserted in defendant’s request to admit. Moreover, plaintiff did not bring a motion asserting good cause for an extension of time to respond under Supreme Court Rule 183 (107 Ill. 2d R. 183). Consequently, the trial court should have granted defendant’s motion to strike plaintiff’s answers, and it was an abuse of discretion to allow the filing of an untimely and unsworn response.” (Emphasis added.) Koca, 199 Ill. App. 3d at 672-73.

Perhaps a recap of the first district cases would be helpful before we travel south (and west) to examine the holdings in the other districts. It would appear that, at the present time, only the second division under the authority of Iversen, and possibly the sixth under Koca, still adhere to the no-discretion rule. Magee from the first division, Thomas from the third division, Bluestein from the fourth division and Redmond from the fifth division all recognize some discretion, although differing bases for exercising that discretion may be applied depending upon the division involved.

If the state of the law on this point seems somewhat unclear in the first district, we can only report that, contrary to the Florida Chamber of Commerce statements, it doesn’t necessarily clear up as one travels south.

SECOND DISTRICT

The trend in favor of discretion over nondiscretion in most of the more recent cases from the first district is mirrored in the decisions from the second district. Illinois State Toll Highway Authority v. Humphrey Estate (2d Dist. 1978), 62 Ill. App. 3d 316, 379 N.E.2d 626, recognized that Supreme Court Rule 216 is a discovery tool and ruled that the trial court should have wide discretion in controlling it. It should be noted, however, that State Toll Highway Authority involved a late filing of a request to admit and not a late response to a request. Homer G. Dickson & Co. v. Barraza (2d Dist. 1983), 115 Ill. App. 3d 5, 449 N.E.2d 990, held that the facts were properly deemed admitted when no response had been filed, but in doing so it certainly suggested that discretion existed by its statement that “the trial court did not abuse its discretion in treating the requested facts as admitted.” Dickson, 115 Ill. App. 3d at 8, 449 N.E.2d at 992.

While there might be some question about the second district’s position based on either State Toll Highway or Dickson, the slightly later case of Daleanes v. Board of Education of Benjamin Elementary School District 25 (2d Dist. 1983), 120 Ill. App. 3d 505, 457 N.E.2d 1382, makes it clear that discretion is allowed. Daleanes relied upon Supreme Court Rule 183 (107 Ill. 2d R. 183) which empowers trial courts to extend any time limit created by the rules for good cause shown to approve a late response. The good cause shown in Daleanes was a change in attorneys during the time period involved. Daleanes also noted that the disputed fact was central to the dispute and that the requesting party was unable to show significant prejudice resulting from the delay.

The failure to show prejudice was apparently the most important factor in Rybak v. Dressler (2d Dist. 1988), 178 Ill. App. 3d 569, 532 N.E.2d 1375. In Rybak the defendant did not timely respond because the answers were misfiled in counsel’s office. In fact, the responses were not filed until three months into the trial. Nevertheless, the court affirmed:

“It is clear from the record that the defendants’ response to Rybak’s request for admission actually was prepared within the 28-day time period, although for reasons of ‘misfiling’ within counsel’s office it was not filed with the court. Further, the record shows defendants responded immediately when the fact of the nonfiling was brought to their attention and no intent to obstruct the proceedings or prejudice Rybak is evident. Rybak, in fact, does not suggest what prejudice she may have been caused by the late filing. As such, the trial court did not abuse its discretion in refusing to apply the rule strictly against the defendants. This conclusion is also supported by the fact the documents Rybak sought to have automatically admitted as genuine were eminently central to the cause. The stated purpose of Supreme Court Rule 216 is to obviate the necessity of proof of facts as to which there is no real dispute. ‘Using it to *** cover matters that are fairly disputed is a waste of the time of counsel for both sides and the court.’ (Ill. Ann. Stat. ch. 110A, par. 216, Historical and Practice Notes, at 366 (Smith-Hurd 1985); Simms, 172 Ill. App. 3d at 699[, 526 N.E.2d 931].) Certainly the documents at issue here were ‘fairly disputed.’ ” (Emphasis added.) Rybak, 178 Ill. App. 3d at 584-85, 532 N.E.2d at 1385.

THIRD DISTRICT

The smooth move through the divisions and districts recognizing discretion comes to an abrupt halt at the borders of the third district, which has consistently applied the rule of no-discretion. While some of the earlier third district cases apply the rule with little or no discussion of whether the trial court was asked for discretionary relief (West Central Utilities Service Co. v. Central Illinois Public Service Co. (3d Dist. 1976), 42 Ill. App. 3d 5, 355 N.E.2d 349; People ex rel. Fahner v. American Buyers Club, Inc. (3d Dist. 1983), 115 Ill. App. 3d 759, 450 N.E.2d 904; Yohnka v. Darling Nells, Inc. (3d Dist. 1985), 136 Ill. App. 3d 309, 483 N.E.2d 649), the same is not true of Johannsen v. General Foods Corp. (3d Dist. 1986), 146 Ill. App. 3d 296, 496 N.E.2d 544. In Johannsen, Justice Barry reviewed the cases by district and division and concluded that no discretion was the better rule. Johannsen also stated that inadvertence of counsel does not equal the “good cause” requirement of Supreme Court Rule 183 and that “[a] litigant moving to strike a faulty response is not required to prove prejudice before the facts requested are deemed admitted under the rule.” Johannsen, 146 Ill. App. 3d at 301, 496 N.E.2d at 547.

While the position of the Johannsen court is clear, it may be ternpered somewhat by the facts of the case, which involved a responding attorney who was specifically cautioned at a pretrial conference of the outstanding request to admit, filed the responses late, and failed to have the responses sworn to by the party answering the request. In view of these factors, Johannsen concludes:

“Clearly, the trial court’s ruling promotes the purpose of Rule 216, which is to narrow the triable issues and to limit the cost and length of litigation. On these facts, the trial court did not abuse its discretion in applying the rule as it did, granting plaintiff’s motion to strike defendant’s response and deeming the facts requested as admitted.” (Emphasis added.) Johannsen, 146 Ill. App. 3d at 301, 496 N.E.2d at 547.

The only possible exception to the no-discretion position of the third district is found in Sanders v. Sanders (3d Dist. 1977), 55 Ill. App. 3d 248, 371 N.E.2d 121, which involved a custody dispute in which the mother failed to respond to the father’s request to admit that she was not the mother of the minor child. Sanders refused to follow the no-discretion rule because the father’s participation in the earlier divorce proceeding with its finding of maternity made his attempt to utilize the request to admit procedure border on fraud. The court ruled that the plaintiff had no duty to either answer or object to the request to admit because the res judicata effect of the prior proceeding precluded any resubmission of the issue of parentage.

FOURTH DISTRICT

The fourth district followed the rule of no-discretion in Kothe v. Jefferson (4th Dist. 1982), 109 Ill. App. 3d 247, 440 N.E.2d 415, Colwell Systems, Inc. v. Henson (4th Dist. 1983), 117 Ill. App. 3d 113, 115, 452 N.E.2d 889, 891, and County of Champaign v. Hanks (4th Dist. 1976), 41 Ill. App. 3d 679, 453 N.E.2d 405, although there is no discussion of whether the trial courts were asked to exercise discretion.

FIFTH DISTRICT

If the first district embodies the “Where” of the song, then the fifth district must embody the “When.” Three earlier cases, Crum v. Gulf Oil Corp. (5th Dist. 1973), 12 Ill. App. 3d 988, 299 N.E.2d 820, Chapman v. Foggy (5th Dist. 1978), 59 Ill. App. 3d 552, 375 N.E.2d 865, and F.J. Pechman, Inc. v. Oldham (5th Dist. 1980), 86 Ill. App. 3d 1018, 408 N.E.2d 487 (all of which were referred to and relied upon in Justice Barry’s review in Johannsen, and all of which granted no discretion), have not been followed by the two later cases of Kismer v. Antonovich (5th Dist. 1986), 148 Ill. App. 3d 508, 499 N.E.2d 707, and Sims v. City of Alton (5th Dist. 1988), 172 Ill. App. 3d 694, 526 N.E.2d 931. It should be pointed out that in Crum the responding party filed no response at all until the case was in trial and that in Chapman the response was both late, unsworn, and in fact unsigned by anyone. In Pechman, however, the plaintiff’s response was only nine days late, and on the following day the defendant filed a motion for summary judgment based upon the admissions occasioned by the late response. The trial court’s allowance of the summary judgment was upheld, relying upon the no-discretion rule announced in Banks.

Six years later, however, Kismer distinguished the holdings in the above three cases on the basis that none of them specifically addressed the question of whether the trial court had discretion to permit a late response. In ruling that discretion existed, Kismer relied upon Supreme Court Rule 183:

“For authority regarding the discretion of a court to exercise discretion to permit the late filing of a response to a request to admit the truth of facts or the genuineness of documents filed pursuant to Supreme Court Rule 216, one need go no further than Supreme Court Rule 183 (87 Ill. 2d R. 183). It provides:
‘The 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.’
By its own terms Rule 183 is applicable to the 28-day time constraint for responses contained in Rule 216(c), and Rule 216 itself is not couched in such imperative terms as to exclude the applicability of Rule 183.” Kismer, 148 Ill. App. 3d at 510, 499 N.E.2d at 708-09.

The final fifth district case, Sims, reiterated the discretion embodied in Supreme Court Rule 183 as a general basis for allowing a late response, but it also specifically held that a late response was permissible when the request went to the central issues of the case and the requesting party was unable to show the late response prejudiced its position.

A one-page review of the foregoing review may be in order at this time, and it reveals that:

FIRST DISTRICT

Split among divisions and within divisions over time with four of the six divisions recognizing discretion at the present time for a variety of reasons.

SECOND DISTRICT

Discretion is allowed.

THIRD DISTRICT

No discretion is allowed.

.FOURTH DISTRICT

No discretion is allowed.

FIFTH DISTRICT

Earlier cases held no discretion, but at the present time discretion is allowed.

Being fully aware of the divergence of the holdings in this area, we now turn to the question of what the proper rule should be.

We hold that granting the trial court discretion to allow late responses to requests to admit is the preferable rule, and we hold this primarily because Supreme Court Rule 216 is a discovery tool. The object of discovery in general is to enable the parties to determine the facts and to insure a just disposition of the case either through settlement or trial. Trial courts are given wide discretion and significant supervisory powers in order to enable them to properly monitor the broad discovery, allowed in our State. Interrogatories and depositions may be limited or extended depending upon the circumstances of the particular case. Granted, Supreme Court Rule 216 has a definite 28-day period for a response, but should not the overall search for the truth and a just result govern when determining the appropriate rule for all discovery tools?

We feel that this question must be answered affirmatively. Definite time limits are necessary in some instances, such as statutes of limitations or notice of appeal requirements, even though they may occasionally produce seemingly harsh results. This same need for certainty of time does not exist in most instances in discovery procedures. Although there is no indication that it happened in this case, we are not so far removed from the practice of law that we cannot recall receiving a two-inch stack of pleadings with crucial requests to admit buried in the middle of them. While the object of Supreme Court Rule 216 is to enable the parties and the court to limit the issues and to reduce the production of unnecessary proof at trial, this should not change its essential nature from that of a tool to that of a weapon; fishers for truth should use their nets to seine for facts, not to strangle their opponents.

What then, should the nature of the inquiry be when a trial court is faced with the request to file a late response? Should it be any of the tests set forth in the above review or, turning only to the more recent fifth district cases, should it be the “good cause shown” test of Supreme Court Rule 183 relied upon by Kismer or the “no prejudice” standard of Sims'!

We believe that all of the standards relied upon by the courts which have allowed discretion are contained within the two standards set forth in Kismer and Sims. For example, the “circumstances beyond the control of the litigant” mentioned in Redmond fits into the category of “good cause shown” under Supreme Court Rule 183 as does its “inherent power to prevent injustice” test. The other major consideration, the requesting party’s inability to show prejudice, relied upon by Bluestein and Daleanes, is consistent with the same test utilized in Sims. The “central issue in the case” standard referred to in the last three cases is not really a separate test; it is only evidence of the importance of the contested fact to the parties and can be considered by the court in favor of or against either party in analyzing the problem under the two main tests.

The only refinement to Kismer and Sims which we make in our holding in this case is to suggest that the analysis should proceed in two steps.

The first inquiry should be, has the requesting party been prejudiced by the late response? This prejudice could occur for several reasons: the death of a witness in the intervening time, the destruction or loss of tangible items or documents, or the reliance upon the admission of the facts in further preparation of the case. If no prejudice to the requesting party is shown, the trial court should generally allow a late response. If the trial court allows the late response, it should also freely fashion appropriate relief to the requesting party in terms of attorney fees and costs incurred in the proof of the requested facts. (See 107 Ill. 2d Rules 201, 219.) In this way the interests of the responding party are protected by allowing the late response, and the interests of the requesting party are protected by the imposition of the appropriate costs and fees.

If, however, the requesting party shows prejudice as a result of the late response, the court should be most reluctant to grant relief to the responding party. It is at this point that the provisions of Supreme Court Rule 183 should be considered. Only for good cause shown should any relief be granted, and we agree to this extent with the second district; mere inadvertence of counsel does not equate with good cause shown.

We believe that this two-step inquiry, first, can the requesting party show prejudice as a result of the late response, and second, if so, can the responding party show good cause, is the appropriate method to analyze motions for leave to file late responses to requests to admit.

Applying this test to the facts of this case, we find that on the initial request to file a late response the trial court acted properly since no prejudice was shown. However, when the defendant raised the statute of limitations as a defense some three years after the case was filed, the court was faced with a situation in which the plaintiff was able to show prejudice as a result of the late response. If the requested facts had been deemed admitted prior to the raising of the statute of limitations defense, summary judgment for the plaintiff was clearly proper; there was nothing left to litigate. Therefore, the court should have examined the late response under the more stringent “good cause shown” requirements of Supreme Court Rule 183. No satisfactory reason was given for the late response. Therefore, the facts should have been deemed admitted and summary judgment for the plaintiff should have been entered.

In view of our disposition of this case with regard to the court’s ruling on the plaintiff’s request to admit, we need not address the other issues raised by the plaintiff. This case is reversed and remanded with instructions to the trial court to enter summary judgment for the plaintiff and against the defendant.

Reversed and remanded.

RARICK and WELCH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA PRESIDING JUSTICE BARRY and JUSTICE WOODWARD

license: Public Domain

text:
    ROBERT G. PRYOR, Petitioner-Appellee, v. THE INDUSTRIAL COMMISSION et al. (Rockwell International, Appellant).
    Fifth District (Industrial Commission Division)
    No. 5-89-0005WC
    Opinion filed August 8, 1990.

      BARRY, P.J., and WOODWARD, J., dissenting.
    John B. Adams and Jeffrey B. Huebsch, both of Kubiesa & Power, Ltd., of Westmont, for appellant.
    James H. Cooksey, of Crain, Cooksey & Veltman, Ltd., of Centraba, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Claimant, Bob G. Pryor, sought worker’s compensation benefits following an alleged accident while working for respondent Rockwell International. An arbitrator awarded $219.74 per week for 236/v weeks as temporary total disability benefits, plus $7,829 for medical expenses. The Industrial Commission (Commission), with one member dissenting, reversed the arbitrator’s decision, finding no award should be made because claimant failed to prove he sustained accidental injuries arising out of and in the course of his employment. The circuit court of Marion County reversed, finding the Commission’s decision was against the manifest weight of the evidence.

Claimant began working for respondent in October 1983. In 1985, he was a molder, and his job required bending over to pick up six to eight pounds of material from a box, cut it, and bend over to hand the material to a trimmer every 90 seconds. In late July 1985, one of the two molder jobs, and one of the two trimmer jobs, were eliminated. Claimant, therefore, asserted that his workload doubled. He soon noticed pain shooting down his lower back and right leg.

On August 19, 1985, claimant saw Dr. Michael Murphy, a neurosurgeon. He gave no history of a work-related injury.

On September 4, 1985, claimant felt increased pain at work. He testified that he reported the problem to the plant nurse, the plant supervisor, Frank Franczyk, and several other employees. Claimant was told he would need a doctor’s authorization to go on medical leave. He stopped working on that day.

On August 19 and September 12, 1985, claimant signed group insurance claim forms which stated that no accident was involved. Claimant testified that Franczyk told him it was too late to file a worker’s compensation claim, and that an accident was only when, e.g., an object fell on the worker and injured him. Claimant testified, however, that he understood accidents could occur in other ways.

On September 24, 1985, claimant returned to Dr. Murphy. On October 19, 1985, back surgery was performed. On April 10, 1986, claimant returned to work for respondent. Claimant testified at the arbitration hearing that he continued to experience leg and back problems.

Claimant also testified regarding a preexisting condition. In 1976, claimant injured his back when he was pinned between two trucks. He was treated by Dr. Murphy. In 1978, both legs became numb and he could not walk. After six months of treatment, Dr. Murphy performed a laminectomy in July 1978. From that time until the time of the arbitration hearing, claimant experienced some numbness in his left leg. He had no further problems with his back until July 1985, although he worked at several laborer jobs during the intervening years.

Claimant denied any leg injuries since 1978. He agreed, however, that in January 1984 he reported to his supervisor that he had injured his knees. In 1983, claimant passed a preemployment physical with respondent.

Ann Marie Pryor, claimant’s wife, testified that in late August 1985 claimant began having physical difficulty working around the house and getting up from the couch.

Frank Franczyk testified for both parties. He denied speaking with claimant on September 4, 1985, about a work injury. In October 1985, he spoke with a union representative and claimant about filing the worker’s compensation claim.

Dr. Murphy testified at a January 28, 1986, evidence deposition. In 1978, claimant had a herniated disc at L4-L5 and L5-S1 levels.

On August 19, 1985, he saw claimant. A patient information sheet indicated that he had a worker’s compensation claim. Objective findings were present, including some residuals from the 1978 surgery. An August 19 letter which Dr. Murphy wrote to claimant’s physician made no mention of trauma at work.

On September 24, 1985, claimant told Dr. Murphy he had suffered back pain when pulling material from a box at work. Tests revealed a herniated disc at L4-L5 and L5-S1 levels. On October 18, 1985, a lumbar fusion was performed.

Dr. Murphy opined: “I don’t think [the back condition] was caused by [the work activities], but I suspect it was pre-existing and was aggravated by it.” He also said that the condition could “occur with as little as the activities of daily living” because the condition was “a time bomb” waiting to go off. The disc condition was degenerative in nature and could be long standing. The diagnostic findings could be there without trauma and were consistent with post-operative changes. The 1985 surgery revealed a calcified disc fragment, which could result from the prior injury.

The arbitrator found claimant had suffered an accident arising out of and in the course of his employment with respondent. The arbitrator relied on Dr. Murphy’s opinion that claimant’s condition was related to the work activities and that his preexisting condition was aggravated by the work duties.

The Commission reversed, finding insufficient evidence of a compensable injury. It relied on the fact that initially claimant did not report a work injury to Dr. Murphy; that the medical insurance forms did not specify a work accident; and that Dr. Murphy “suspected the work history of pulling of materials described by [claimant], aggravated the preexisting herniated disc, not caused it.” A dissenting member asserted that the majority erred in relying on claimant’s failure to classify his repetitive injury as an “accident.”

The trial court reversed the Commission, finding its decision was against the manifest weight of the evidence. The court pointed out that from 1978 until July 1985, claimant was without symptoms and that the new symptoms coincided with the doubling of claimant’s workload. The court found that the evidence, including Dr. Murphy’s opinion on causation, established that claimant had suffered a repetitive injury which aggravated a preexisting condition.

Whether a work-related accident occurred and whether it caused a worker’s condition of ill-being are questions of fact for the Commission. (Oscar Mayer & Co. v. Industrial Comm’n (1988), 176 Ill. App. 3d 607, 531 N.E.2d 174.) The Commission must weigh the evidence and draw reasonable inferences therefrom. This court may not overturn the Commission’s decision merely because it might have drawn different inferences. Niles Police Department v. Industrial Comm’n (1981), 83 Ill. 2d 528, 416 N.E.2d 243.

Recovery is properly denied where the employee’s health has so deteriorated that any normal daily activity is an overexertion, or where the activity engaged in presents risks no greater than those to which the general public is exposed. (Caterpillar Tractor Co. v. Industrial Comm’n (1982), 92 Ill. 2d 30, 440 N.E.2d 861.) Where a preexisting condition is aggravated, the employee must show that the employment significantly contributed to the injury by placing the employee in a position increasing the dangerous effects of the physical act which revealed the condition of ill-being. See Elliot v. Industrial Comm’n (1987), 153 Ill. App. 3d 238, 505 N.E.2d 1062.

Once claimant’s physician testified without contradiction that any normal daily activity could produce the herniated disc, this court should not step in and prohibit the Commission from relying on that expert opinion.

Claimant argues that the work duties significantly contributed to the back injury because petitioner was bending over every few minutes to lift six to eight pounds of material out of a box. The Commission was entitled to rely on Dr. Murphy’s opinion that the work might have aggravated but did not cause the herniated disc. Dr. Murphy agreed that the condition of petitioner’s back was a “time bomb” waiting to go off. Interestingly, he added that any employer was “nuts to hire him” because they would not “get their money’s worth.” Dr. Murphy emphatically stated that the disc would herniate without any trauma at all. It could occur with “as little as the activities of daily living,” such as sneezing, or bending over to tie his shoes, or “anything.” Dr. Murphy testified that he expected the disc problems to show up again after the 1978 surgery “one way or the other.”

Thus, the Commission could reasonably infer that petitioner could have herniated the disc by bending over to pick up a newspaper, bending over at the grocery store to pick up food, or bending over at the gas station to check his tires. The need to bend over, even repeatedly, is not unique to petitioner’s work. It is not sufficient that the pain from a condition of ill-being might have been experienced at work. The act of bending over does not establish, as a matter of law, the existence of a risk greater than those faced outside of work. See Elliot v. Industrial Comm’n, 153 Ill. App. 3d 238, 505 N.E.2d 1062.

Dr. Murphy’s testimony apparently undermined claimant’s contention that the change in workload triggered claimant’s October condition. Significantly, Dr. Murphy believed the work duties “aggravated” the preexisting condition only because he found calcification on the disc fragment nerve root during the October 1985 surgery and assumed it had been there for some time. “It takes a while, and I can’t tell you how many days for something to calcify. I assume that’s over a period of time, and I think maybe six to twelve months.” Dr. Murphy, of course, was apparently unaware of the timing of the change in the workload. The only detail he recited regarding the work duties and their aggravation of the back condition was a vague statement that the possibility of aggravation “seems to be consistent with the story that [claimant] told.” In fact, petitioner complained of pain within weeks after the workload changed, and within two months underwent the operation which revealed the longstanding calcification. Dr. Murphy also stated that it would be “unusual” for trauma-induced herniation to result in calcification within only two months.

The Commission was also entitled to rely on the fact claimant delayed reporting to his physician a history of trauma at work for over a month, until September 24,1985.

Although there is an early reference to a worker’s compensation claim, the Commission could also rely on the fact that in August and September 1985, claimant completed insurance forms stating he did not claim a work-related accident. It is true that a worker need not understand the exact meaning the law imparts to the term “accident,” particularly in a repetitive trauma case. However, while not fatal to the claim, the Commission, as trier of fact, was free to disbelieve claimant’s explanation as to why he failed to tell his physician the pain was work related and failed to note on the insurance claim forms that a work-related injury was involved.

We hold that the Commission’s decision is not against the manifest weight of the evidence.

For these reasons, the judgment of the circuit court of Marion County is reversed, and the Commission’s decision, awarding no benefits to claimant, is reinstated.

Judgment reversed.

McCULLOUGH and LEWIS, JJ., concur.

PRESIDING JUSTICE BARRY and JUSTICE WOODWARD

dissenting:

We respectfully dissent from the majority opinion. The majority treats this appeal as merely a determination of whether the Commission’s decision, was against the manifest weight of the evidence. We cannot agree. As the dissenting Commissioner and the circuit court noted, the Commission’s majority decision misapplied the law to the facts. When the law is correctly applied to the Commission’s factual findings, which came from the nearly uncontroverted evidence, it is clear that the petitioner proved his case.

As noted by the majority, the arbitrator found that the petitioner had sustained accidental injuries arising out of and in the course of his employment. Specifically, she found that the petitioner’s back problems developed at work after he was required to work alone on an Aerostar press. That job consisted of bending over every minute and 45 seconds to pull six to eight pounds of material out of a box, cutting it, then bending over a 460°F, waist-high die without touching it and handing the cut material to the trimmer on the other side of the six-foot-wide die. Based on her finding, the arbitrator ruled that the petitioner was temporarily totally disabled from September 4, 1985, through February 18, 1986, the date of the arbitration hearing.

On review before the Commission, the parties stipulated that as of April 10, 1986, the petitioner had returned to work and was engaged in his normal duties for the respondent. No further new evidence was presented.

The Commission reversed the arbitrator’s decision, finding that the petitioner had failed to prove he sustained accidental injuries arising out of and in the course of his employment. The Commission expressly found that on August 19, 1985, the petitioner had not told Dr. Murphy that his back problems were work related. It further found that “Dr. Murphy suspected the work history of pulling of materials described by the Petitioner, aggravated the preexisting herniated disc, not caused it.” Additionally, it specifically noted that on the August 29 and September 12, 1985, medical insurance claim forms the petitioner filled out, he “did not claim a specific accident.” Commissioner Ted Black, Jr., dissented, contending that the majority had erred in basing its decision on the petitioner’s failure to categorize his injury as an accident and in ignoring the repetitive trauma law set forth in Peoria County Belwood Nursing Home v. Industrial Comm’n (1987), 115 Ill. 2d 524, 505 N.E.2d 1026.

The circuit court found that the Commission’s majority decision was against the manifest weight of the evidence and that the dissenting Commissioner was correct. The court noted that the petitioner’s preexisting condition was undisputed, as was the evidence that the petitioner was asymptomatic until July of 1985, when the amount of pulling he was required to do on the job approximately doubled. The court found inappropriate the Commission’s consideration of the medical forms in which the petitioner had failed to refer to a specific accident. Regarding the petitioner’s being a time bomb, the court stated that an employer takes an employee as it finds him. It further found that the only medical evidence of causation was Dr. Murphy’s opinion that the repetitive pulling of material at work had aggravated the petitioner’s preexisting condition. Based on its findings, the circuit court reinstated the decision and award of the arbitrator.

The law provides that an employee may be “accidentally injured” under the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.) as the result of repetitive, work-related trauma even absent a final, identifiable episode of collapse. (Peoria County Belwood Nursing Home v. Industrial Comm’n (1985), 138 Ill. App. 3d 880, 487 N.E.2d 356, aff’d (1987), 115 Ill. 2d 524, 505 N.E.2d 1026.) Employers take their employees as they find them; when a worker’s physical structure, diseased or not, gives way under the stress of his usual tasks, the law views it as an accident arising out of and in the course of his employment. (General Electric Co. v. Industrial Comm’n (1982), 89 Ill. 2d 432, 433 N.E.2d 671.) The sole exception to this rule is to deny recovery where the employee’s health has so deteriorated that any normal daily activity is an overexertion, or where the activity engaged in presented risks no greater than those to which the general public is exposed. Caterpillar Tractor Co. v. Industrial Comm’n (1982), 92 Ill. 2d 30, 440 N.E.2d 861.

A claimant need not show that the work accident was the only causative factor, or even the principal causative factor. He need only show that the accident was a causative factor. (Smith v. Indus trial Comm’n (1987), 161 Ill. App. 3d 383, 512 N.E.2d 712.) Further, as found by the circuit court, a claimant is not expected to know the unique meaning of the word “accident” under the Act. Luckenbill v. Industrial Comm’n (1987), 155 Ill. App. 3d 106, 507 N.E.2d 1185.

We find very few discrepancies in the evidence presented in this case. It is undisputed that following the petitioner’s 1978 back surgery, he worked in a number of physically demanding jobs without incident. Prior to starting work with the respondent, he passed a preemployment physical examination. He then worked for almost two years without any back pain, though he did experience some numbness in his left leg. That numbness was merely a residual of the 1978 surgery. The onset of his current back problems coincided with the cutting of two workers from the press crew, which doubled his workload.

Dr. Murphy testified that during his August 19, 1985, visit, the petitioner filled out a form stating that worker’s compensation was involved. While the petitioner did not at that time tell the doctor that his work was causing his back problems, Dr. Murphy did not ask the petitioner for a cause. Instead, the doctor merely examined the petitioner and ordered a CAT scan. Further, as the dissenting Commissioner and the circuit court noted, under the circumstances of this case it was unreasonable to expect the petitioner to believe that he had suffered an “accident.” When Dr. Murphy did take a history from the petitioner, the petitioner stated that he believed his work had caused his back problems.

While the majority places considerable weight on the doctor’s agreement with the respondent’s attorney’s statement that the petitioner was a time bomb, we do not find it indicative of the doctor’s testimony as a whole. Dr. Murphy plainly stated on several occasions that he believed the petitioner’s work had aggravated his back condition and led to the herniated disc.

Interestingly, the Commission’s factual findings were generally consistent with the overwhelming weight of the evidence. It was only when the Commission applied the law to its findings that it seriously erred in two respects. First, it erroneously relied on the petitioner’s failure to call his injury an “accident.” Second, it completely ignored Peoria Belwood. Regarding the first error, contrary to this court’s majority opinion, the Commission’s reliance on the petitioner’s failure to recognize his injury as an “accident” directly contradicts our holding in Luckenbill. Regarding the second error, the Commission’s reliance on the fact that Dr. Murphy suspected that the petitioner’s work had “aggravated the preexisting herniated disc, not caused it,” showed its misunderstanding of the law of repetitive trauma as set forth in Peoria Belwood. That finding should have led the Commission to uphold the arbitrator’s award.

We therefore conclude that the circuit court correctly found that the Commission’s opinion was against the manifest weight of the evidence and correctly reinstated the arbitrator’s decision and award.


author: JUSTICE HOWERTON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGIA VALENTINE, Defendant-Appellant.
    Fifth District
    No. 5-89-0588
    Opinion filed August 13, 1990.

      Jeff Plesko and Penelope Earns, both of Guardianship & Advocacy Commission, of Carbondale, for appellant.
    H. Wesley Wilkins, State’s Attorney, of Jonesboro (Eenneth R. Boyle, Stephen E. Norris, and Debra Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

The evidence was clear and convincing: Georgia Valentine was deluded; she had had hallucinations; her speech was impaired; she was irritable; she had attempted suicide; and she had been arrested for destroying a neighbor’s property. She was a person who needed involuntary admission to a mental institution under the Illinois Mental Health and Developmental Disabilities Code. And, she was involuntarily admitted on a petition of a registered nurse and a certificate of a physician, pursuant to section 3 — 602 of the Mental Health and Developmental Disabilities Code (Mental Health Code or the Act) (Ill. Rev. Stat. 1987, ch. 9D/2, par. 3-602).

The issue we review is whether the failure to have Valentine examined by a psychiatrist within 24 hours of her admission as provided by the Mental Health Code (Ill. Rev. Stat. 1987, ch. 9U/2, par. 3 — 610) deprived the circuit court of Union County of the power to hear the petition and order her involuntary commitment to be continued after a hearing under article VIII of the Mental Health Code.

We hold that the failure deprived the court of power and reverse.

Georgia Valentine, admitted to a mental institution on an emergency basis, was not examined by a psychiatrist until 26 hours and 15 minutes after her involuntary, emergency admission — 2 hours and 15 minutes late, according to the finding of the circuit court as well as the directive of the applicable statute. Ill. Rev. Stat. 1987, ch. 9IV2, par. 3 — 610.

Section 3 — 610 provides:

“As soon as possible but not later than 24 hours, excluding Saturdays, Sundays and holidays, after admission of a respondent pursuant to this Article, the respondent shall be examined by a psychiatrist. *** If the respondent is not examined or if the psychiatrist does not execute a certificate pursuant to Section 3 — 602, the respondent shall be released forthwith.” Ill. Rev. Stat. 1987, ch. 911/2, par. 3 — 610.

Counsel was appointed for Valentine. The circuit court prepared to hear the original petition to determine whether her involuntary admission should be continued under the provisions of article VIII of the Act. Ill. Rev. Stat. 1987, ch. 911/2, par. 3 — 800 et seq.

Before the hearing commenced, Valentine, through her counsel, moved: (1) to dismiss the petition for involuntary admission; and (2) that the circuit court order Valentine’s release, because she had not been examined within 24 hours.

The circuit court, notwithstanding that the Act provided that she had to be examined by a psychiatrist not later than 24 hours of her admission, refused her motion to dismiss the petition, ruling that Valentine’s rights had not been abridged, and proceeded to hear evidence on whether she should continue to be hospitalized.

The circuit court found that the State had established by clear and convincing evidence that Valentine was a person subject to involuntary admission and ordered her hospitalized for a period not to exceed 60 days.

The general rule requires construction of a statute so that the language is not rendered meaningless or superfluous. People v. Singleton (1984), 103 Ill. 2d 339, 469 N.E.2d 200.

Because the commitment here was involuntary and serious liberty interests were involved, there must be strict compliance with the statutory requirements. In re Vancil (1989), 183 Ill. App. 3d 204, 538 N.E.2d 1372; In re Satterlee (1986), 148 Ill. App. 3d 84, 499 N.E.2d 101; In re Elkow (1988), 167 Ill. App. 3d 187, 521 N.E.2d 290; In re Riviere (1989), 183 Ill. App. 3d 456, 539 N.E.2d 451.

The statute provides that unless examination is made as soon as possible, but not later than 24 hours, the patient shall be released. Georgia Valentine was not examined by a psychiatrist within 24 hours. She, therefore, should have been released. Since the court was determining whether she should continue to be held, the mandatory release provision contained in the statute can only be read to deprive the circuit court of the power to order her continued commitment. To read it otherwise would render the release provision meaningless, a reading contrary to the general rule of statutory construction.

The State argues that the 24-hour deadline is a technical requirement that does not affect basic rights and relies on In re Wheeler (1987), 152 Ill. App. 3d 371, 504 N.E.2d 524, for the proposition that failure to adhere to technical requirements does not affect the circuit court’s power to order involuntary commitment under article VIII.

Wheeler involved a certificate that is not involved in the case at bar. In that certificate, a physician stated that he had examined Wheeler and that he relied on the observations of nurses at the nursing home where Wheeler was housed, in order to arrive at his opinion that the respondent was in need of involuntary admission. Wheeler argued on appeal that People v. Ralls (1974), 23 Ill. App. 3d 96, 318 N.E.2d 703, required a physician to state specific reasons for the examiner’s conclusions based solely on the examiner’s own observations, and therefore, the certificate was invalid inasmuch as it also relied on observations of nurses in addition to the physician. The Wheeler court rejected that argument and held that section 3 — 602 of the Illinois Mental Health Code requires personal examination of the respondent and, so long as the examination personally was made, the physician could base his opinion that the respondent was in need of involuntary admission at least in part on the observations of others, a result not surprising in light of Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322, and also consistent with the provisions of section 3— 602.

Wheeler, therefore, does not address a failure to examine a patient, but rather addresses an evidentiary question.

We do not believe that Wheeler stands for the proposition that a physician does not have to timely examine a person involuntarily committed under the direction of section 3 — 610.

The State argues that even if the circuit court’s finding was erroneous and against the manifest weight of the evidence, the result was correct and the error was “technical” rather than substantive so that respondent was not prejudiced by the two-hour delay. We do not believe that Wheeler stands for the proposition that failure to examine a patient is a mere technicality, given the clear directive of the statute.

The legislature has created a bright line. The State has 24 hours. No doubt, the bright line was created as a prophylactic against deciding these kinds of cases on an ad hoe basis. When we recall that other governments have used involuntary commitment to a mental hospital as a ruse, as a device to silence critics, we feel that this bright line is but one brick in a wall against the evils of tyranny that we, in this country, have erected. One brief glance toward the recent history of Eastern Europe is persuasive of the wisdom of that wall, the wisdom of this rule.

Any noncompliance with the statutory prescribed involuntary commitment procedures renders the judgment entered in such a cause erroneous and of no effect. In re Elkow (1988), 167 Ill. App. 3d 187, 521 N.E.2d 290.

The circuit court is reversed.

Reversed.

HARRISON and RARICK, JJ., concur.


author: JUSTICE GOLDENHERSH

text:
      In re MARRIAGE OF LARRY RAY BRAUNDMEIER, Petitioner and Counterrespondent, and LAURA L. BRAUNDMEIER, Respondent and Counterpetitioner-Appellee (The County of Effingham, Appellant).
    Fifth District
    No. 5-88-0765
    Opinion filed August 13, 1990.

      Paula Phillips, State’s Attorney, of Effingham (Kenneth R. Boyle, Stephen E. Norris, and Ellen Eder Irish, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellant.
    Lou J. Viverito, of Taylor Law Offices, P.C., of Effingham, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Appellant, County of Effingham (County), appeals from an order of the circuit court of Effingham County directing it to pay the fees of court-appointed counsel for appellee, Laura L. Braundmeier. In this cause, the County argues that the circuit court was without statutory authority to order the payment of fees. We reverse.

Petitioner, Larry Ray Braundmeier, filed a petition for dissolution of marriage on October 2, 1985, which was granted by the circuit court of Effingham County on July 23, 1986. The court awarded custody of the couple’s children to their mother, respondent, Laura L. Braundmeier.

On October 20, 1987, the State filed a petition of wardship. The circuit court held a hearing that day, found probable cause, and removed the children from respondent’s household. At that hearing, appointed counsel represented both petitioner and respondent. Petitioner’s counsel filed a petition seeking temporary and permanent custody of the children on October 27, 1987.

Petitioner’s appointed counsel advised him to proceed in divorce court. On December 31, 1987, petitioner sought leave to file a petition for modification of custody, and a petition for temporary and permanent modification of custody judgment pursuant to section 610(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 610(a)), prepared by private counsel. Petitioner alleged that the children’s environment with their mother seriously endangered their physical, mental, moral and emotional health. The court granted the petitions and continued the case to January 21, 1988.

Before the January 21, 1988, hearing in the dissolution case, the State notified respondent’s appointed counsel of the State’s intention to dismiss the juvenile case. The appointed counsel recommended that respondent retain private counsel regarding the dissolution action.

On January 20, 1988, the State filed a motion to dismiss the juvenile action because of insufficient evidence. The court granted the motion the next day. The docket notations indicate that petitioner had no objections to dismissal as long as it did not preclude consideration of child abuse in the dissolution case.

At the hearing on January 21, 1988, respondent appeared and asserted that she had been unable to secure other representation. She had contacted legal aid, but they were unwilling to represent her. The circuit court appointed the same attorney it had appointed for her juvenile case. Petitioner’s attorney objected, arguing that petitioner was in similar financial condition, and announced that she would file for attorney fees if respondent received appointed counsel. The State’s Attorney appeared and explained that the State did not object to appointed counsel, but would object if the circuit court ordered the County to pay fees.

The circuit court found that the State’s filing of the juvenile matter initiated the custody matter, noting in hindsight that it would have been appropriate to consolidate the two proceedings. In light of Rosewell v. Hanrahan (1988), 168 Ill. App. 3d 329, 523 N.E.2d 10, and significant State involvement, the circuit court awarded attorney fees. i

The due process clause protects inJiividuals from actions by the State, not actions by private individuals. (Blum v. Yaretsky (1982), 457 U.S. 991, 1002, 73 L. Ed. 2d 534, 545, 102 S. Ct. 2777, 2785; Rosewell v. Hanrahan (1988), 168 Ill. App. 3d at 331, 523 N.E.2d at 11.) The Supreme Court outlined a three-part analysis of the “State action” doctrine in Blum. First, “State action” exists “when it can be said that the State is responsible for the specific conduct of which the plaintiff complains.” (Emphasis in original.) (457 U.S. at 1004, 73 L. Ed. 2d at 546, 102 S. Ct. at 2786.) Second, the State is responsible “for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” (457 U.S. at 1004, 73 L. Ed. 2d at 546, 102 S. Ct. at 2786.) Third, “State action” exists “if the private entity has exercised powers that are ‘traditionally the exclusive prerogative of the State.’ ” 457 U.S. at 1005, 73 L. Ed. 2d at 547, 102 S. Ct. at 2786, quoting Jackson v. Metropolitan Edison Co. (1974), 419 U.S. 345, 353, 42 L. Ed. 2d 477, 485, 95 S. Ct. 449, 455.

The question here is whether the State coerced or provided significant encouragement to petitioner. It is our opinion that it has not. Case law is clear that for an action to rise to the level of “State action” triggering constitutional protection, there must be a sufficiently close nexus between the State and the action, that the action may fairly be treated as that of the State. (Blum v. Yaretsky, 457 U.S. at 1004, 73 L. Ed. 2d at 546, 102 S. Ct. at 2786; Jackson v. Metropolitan Edison Co. (1974), 419 U.S. 345, 351, 42 L. Ed. 2d 477, 484, 95 S. Ct. 449, 453; Moose Lodge No. 107 v. Irvis (1972), 407 U.S. 163, 177, 32 L. Ed. 2d 627, 640, 92 S. Ct. 1965, 1973.) The State is “significantly involved” only when it has commanded a particular result or reserved to itself the power to determine that result. (Adickes v. S.H. Kress & Co. (1970), 398 U.S. 144, 170, 26 L. Ed. 2d 142, 161, 90 S. Ct. 1598, 1615; Peterson v. City of Greenville (1963), 373 U.S. 244, 248, 10 L. Ed. 2d 323, 326, 83 S. Ct. 1119, 1121.) The mere suggestion by appointed counsel that his client seek the advice of private counsel regarding a closely related divorce action does not show that the State instigated filing that case. Neither has the State commanded or reserved to itself the power to determine the result.

Furthermore, mere acquiescence to a private action by the State does not convert it to State action. (Flagg Bros., Inc. v. Brooks (1978), 436 U.S. 149, 164, 56 L. Ed. 2d 185, 198, 98 S. Ct. 1729, 1737; Jackson v. Metropolitan Edison Co., 419 U.S. at 357, 42 L. Ed. 2d at 487, 95 S. Ct. at 457 (exercise of a choice allowed by State law, where the initiative combs from a private entity, not the State, is not “State action”).) We do not believe that appointed counsel’s suggestion to seek private counsel amounts to either overt or covert encouragement by the State. Although the State filed a juvenile petition, the State did not force petitioner to file his custody action. We believe the circuit court erred in holding that the State exercised coercive power or provided such significant encouragement that the choice must in law be deemed to be that of the State. Clearly, it was petitioner’s choice.

Although the State provides a forum, it does not coerce its use. As the First District Appellate Court said, “[t]he mere fact that there is a statute which allows for individuals to bring private adoption proceedings does not of itself turn this action into ‘State’ action.” (Rosewell v. Hanrahan, 168 Ill. App. 3d at 332, 523 N.E.2d at 12.) Divorce actions and custody fights, like adoption proceedings, are strictly voluntary. The Rosewell court’s discussion distinguishing that case from Lassiter v. Department of Social Services (1981), 452 U.S. 18, 68 L. Ed. 2d 640, 101 S. Ct. 2153, further details when due process would require appointed counsel. As Rosewell noted, in Lassiter the State of North Carolina was directly involved in an adversarial position with the parents. Durham County instigated the proceedings; therefore, it was State action which triggered the due process analysis. (Rosewell, 168 Ill. App. 3d at 332-33, 523 N.E.2d at 12.) Here, however, the divorce proceedings were separate and distinct from the State-instigated juvenile proceedings. Thus, awarding attorney fees in this case was inappropriate.

For the foregoing reasons, the order of the circuit court of Effing-ham County is reversed.

Reversed.

HARRISON and RARICK, JJ., concur.