Armagan v. Pesha
7 N.E.3d 148
Ill. App. Ct.2014Background
- Armagan (plaintiff) alleged he left 253 gold coins with Michael Pesha/Gold Dust Coins for safekeeping and later demanded return; defendants refused. Plaintiff filed a verified complaint alleging conversion, breach of bailment, violations of Illinois bailment law/UCC, fraud, consumer fraud, unjust enrichment, and sought constructive trust and damages.
- Michael filed a verified answer denying material facts. Plaintiff served requests for admission under Ill. S. Ct. R. 216 on November 18, 2010. Michael mailed responses December 17, 2010 and filed them with the clerk the same day.
- Plaintiff moved to deem the requests admitted, asserting service-by-mail rules made the response one day late; the trial court granted the motion and deemed facts admitted. Plaintiff then moved for summary judgment and obtained judgment on conversion and breach of bailment; a deficiency judgment and constructive trust followed.
- Michael moved to reconsider and sought an extension under Ill. S. Ct. R. 183, supported by an affidavit that he had been out of town and signed the responses on December 17; the trial court denied relief, finding the late service (one day) was not excused.
- On appeal the court considered whether mailing the response within 28 days satisfied Rule 216 (with Rule 12 governing effective date of service) and whether the trial court abused discretion in denying a Rule 183 extension; the appellate court vacated the deeming order and summary judgment but affirmed denial of the 2-615 motion to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether responses to R.216 were untimely and thus admissions deemed when defendant mailed responses Dec. 17 | Service by mail is "complete" four days after mailing under R.12; because plaintiff mailed requests Nov.18, service completed Nov.22, so responses due Dec.20; defendant’s mailed response was received Dec.21 (four days after Dec.17), one day late => admit | Service occurs when mailed under R.11 and R.12 makes service by mail effective four days after mailing for starting the 28-day clock; defendant mailed response within 28 days of being served, so service was timely | Vacated deeming order: mailing within 28 days satisfied R.216/R.12; responses not deemed admitted; remand to allow defendant's responses to stand |
| Whether trial court abused discretion in denying extension under R.183 (good cause) | Plaintiff argued strict compliance required; no good cause shown | Defendant argued inadvertence/out‑of‑town affidavit and filing with clerk support good cause and equity favors merits | Court held trial court abused discretion in refusing to treat reconsideration as an R.183 extension request; remanded to allow responses (court vacated summary judgment on this ground) |
| Whether summary judgment on conversion and bailment was proper given deemed admissions | With facts deemed admitted, plaintiff argued no genuine issue and summary judgment appropriate | Defendant argued he disputed facts and submitted affidavit raising factual issues | Because deeming order was erroneous, summary judgment was vacated and complaint reinstated for further proceedings |
| Whether 2-615 motion to dismiss verified complaint should have been granted (statute of frauds/2-606 alleged defects) | Defendants argued written instrument required attachment and statute of frauds barred claims | Plaintiff argued claims rest on an oral bailment/service (not sale) and Exhibit E was corroborative and attached; agreement could be performed within one year | Court affirmed denial of 2-615 motion: complaint legally sufficient; not barred by UCC article 2 or the Statute of Frauds; Exhibit E not essential to plead under 2-606 |
Key Cases Cited
- Vision Point of Sale, Inc. v. Haas, 226 Ill. 2d 334 (Ill. 2007) (clarifies good-cause analysis under R.183 and that timely "service" satisfies R.216)
- Bright v. Dicke, 166 Ill. 2d 204 (Ill. 1995) (supreme court rules must be obeyed; service is the operative event for R.216)
- People v. Bywater, 223 Ill. 2d 477 (Ill. 2006) (discusses effect of mailing for service timing)
- Williams v. A.E. Staley Mfg. Co., 83 Ill. 2d 559 (Ill. 1980) (discovery intended as cooperative tool to resolve cases on the merits)
- Hammond v. SBC Communications, Inc., 365 Ill. App. 3d 879 (Ill. App. 2006) (unavailability of affiant can constitute good cause for late filing)