On December 16, 1980, a jury returned a verdict of no cause of action in this case. Plaintiff appeals as of right.
On August 10, 1973, defendant Mary Davis was driving a car owned by her father, defendant R. Hiley Davis, on eastbound 1-94 in the evening rush hour traffic. Unfortunately, she accidentally hit the car in front of her. Plaintiff was a passenger in that car. Eventually, plaintiff sued defendants. Although the case was filed in the Wayne County Circuit Court, it was subsequently remanded to the *686 Detroit Court of Common Pleas pending the outcome of mediation. Because the mediation award was for over $10,000, however, the case was reassigned to the circuit court.
While the case was still pending in the common pleas court, plaintiff filed a motion for summary judgment. Earlier, on July 20, 1979, plaintiff had filed 24 requests for admissions. Defendants answered these requests four days later. However, rather than having either defendant sign them, defendants’ attorney signed the answers. He also failed to have them verified. GCR 1963, 312.1 states:
"Request for Admission. After the commencement of an action a party may serve upon all other parties a written request for the admission by a designated party * * * of the truth of any relevant matters of fact set forth in the request. * * * Each of the matters of which an admission has been requested shall be deemed admitted unless, within a period designated in the request, not less than 10 days after service thereof or within such shorter or longer time as the court may allow on motion and notice, the party to whom the request is directed serves upon the party requesting the admission either (1) a sworn statement denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters, or (2) written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in whole or in part, together with a notice of hearing the objections at the earliest practicable time.”
Because neither defendant either signed or verified the answers as the rule requires, plaintiff argued that defendants had, in fact, admitted the requests for admissions. Therefore, she argued that she was entitled to a summary judgment.
*687 On February 22, 1980, the common pleas judge denied the motion to strike the answers and for partial summary judgment "on the ground that plaintiff did not personally sign the request for admissions as required by GCR 1963, 312.1”. Defendants now concede that GCR 1963, 312.1 does not require a plaintiff to personally sign the request for admissions.
On appeal, plaintiff argues that the common pleas judge incorrectly denied her motion for partial summary judgment. Defendants first argue that this issue is not properly before this Court because plaintiff failed to raise it in the motion for a new trial. The sanctions for failing to properly respond to a request for admissions are not self-executing. A party cannot wait until after the trial to claim that the request was admitted.
Curylo v Curylo,
Actually, the circuit court trial judge never ruled on this issue. Instead, the common pleas judge did. Conceivably, MCL 728.4; MSA 27.3654 (now repealed) controlled this case:
"In all cases in which any of the parties to the *688 litigation feel themselves aggrieved by the judgment, or final order of the common pleas court, appeal or certiorari shall lie within 20 days of the date of the judgment or order, to the circuit court of the county for review * * sic »
However, the order denying the motion for summary judgment in the present case was neither a judgment nor a final order. For a final order to be appealable, it must fully adjudicate the parties’ rights.
Jones v Jones,
72 Ohio Abs 259;
In fact, the normal reasons that would require the circuit judge to first pass on this issue do not apply here. One reason is to fully develop the record for appellate review. See generally
People v Ginther,
Defendants next argue that the common pleas judge correctly denied the motion to strike— though for an incorrect reason. They claim that, because a number of the questions were improper, their failure to verify their answers cannot be held as admissions.
Generally, where a party fails to answer, the requests are taken as admitted.
DeGrove v San-born,
"A party who fails to respond to a request should be held to have admitted it even though the request was objectionable * * *. It is needlessly wasteful of judicial effort to allow a party to obtain a reversal on appeal because of an objection he could have but failed to make when the request was served.”
The rule’s plain language states that a request "shall be deemed admitted” unless the party served with the request either denies the request *690 under oath or objects. Because defendants failed to do either, the requests should have been held to have been admitted. 2
Among the cases that hold that requests are admitted if unanswered even if they are improper are
ASEA, Inc v Southern Pacific Transportation Co,
669 F2d 1242 (CA 9, 1981);
Rutherford v Bass Air Conditioning Co, Inc,
38 NC App 630;
Verification is required to. "impress upon a party of whom admission is requested the gravity of his responsibility”. Comment, 65 W Va L Rev 243, 245,
supra.
The requests should have been held to have been admitted as if they had not been answered: "[a] response even though sufficient in substance to constitute a 'denial’, is held to be an admission if not under oath as required by the rule”. Anno: What
constitutes a
"denial”
within federal rule of civil procedure 36 and similar state statutes and rules pertaining to admissions before trial,
36 ALR2d 1192, 1193 (1954). See also
Robinson v Navajo Freight Lines, Inc,
However, the failure to properly answer the requests for admissions does not mean that the trial judge must automatically enter summary judgment even if (as here) the admissions cover the entire suit. The trial judge has the discretion to allow the party to file late answers or even to amend or withdraw the answers.
Hartford Ins Group Co v Mile High Drilling Co,
When a trial judge is asked to decide whether or not to allow a party to file late answers to the request for admissions, he is in effect called upon to balance between the interests of justice and diligence in litigation.
Hadra v Herman Blum Consulting Engineers,
74 FRD 113 (ND Tex, 1977).
*692
One court has characterized the situation as follows: "The severity of the sanctions should be tempered by a consideration of the equities involved.”
Carey v Klutzick,
653 F2d 732, 739 (CA 2, 1981) . In other words, a rigid rule is sometimes unjustified; but too lenient a rule will undermine the policy of the court rule itself.
Riley v Northern Commercial Co, Machinery Div,
Fredericks v General Motors Corp,
Therefore, the trial judge is to balance three factors in determining whether or not to allow a party to file late answers. First, whether or not allowing the party to answer late "will aid in the presentation of the action”.
Farmers Elevator Co of Horace v Nagel,
The cases of
Lattendresse v Lattendresse,
The present case is rather complicated because the common pleas judge based his decision on an incorrect assumption and thus never exercised his discretion. We believe that the best course is to remand to the circuit court to allow it to exercise its discretion. Plaintiffs requests are hereby *694 deemed admitted becáuse defendants failed to properly respond. However, the trial court may in its discretion allow defendants to properly file late answers. In weighing its discretion, the trial court is to balance all three factors. For example, was plaintiff prejudiced in either her trial preparation or in the trial itself by defendants’ failure to properly respond to the requests? In striking this balance, the trial court is to hold against defendants their failure to ever offer to verify the answers either before the trial court or on appeal. On the other hand, the trial court may also consider allowing defendants to verify a particular answer late based on whether or not that request for admission was proper.
If the trial court, after balancing the different factors, decides that in its discretion defendants should be allowed to file their verified answers late, the jury’s verdict is affirmed. If, in its discretion, the trial court believes that defendants may not file late answers on enough of the requests, it may order a new trial or even order summary judgment for plaintiff.
Plaintiff has also argued that the trial court erred in refusing to direct a verdict for her. However, after reading through the testimony, we do not believe that the evidence establishing defendant Mary Davis’s negligence was so "crystal clear” that the case should have been taken away from the jury.
Caldwell v Cleveland-Cliffs Iron Co,
Remanded with instructions to proceed consistent with this opinion. We do not retain jurisdiction.
Notes
Plaintiff could have sought interlocutory review of the denial of summary judgment.
Belt v Ritter,
Conceivably, GCR 1963, 313.3, allowing expenses and attorneys’ fees, could be the proper sanction. However, it assumes that the party has denied the requests. In this case, defendants, in failing to verify, did not deny anything.
Florida’s rule no longer requires verification. See Melody Tours, Inc v Granville Market Letter, Inc, 413 So 2d 450 (Fla App, 1982); Florida Fish Distributors, Inc v Norwegian Caribbean Lines, Inc, 328 So 2d 240 (Fla App, 1976), cert den 336 So 2d 1181 (Fla, 1976).
Some courts have held that, even though the rule requires verification, under certain circumstances the attorney may sign his own name to the answers and have his signature verified.
Dodd v Cowgill,
85 Nev 705;
This particular prejudice is prejudice in proving the case.
Brook Village North Associates v General Electric Co,
686 F2d 66 (CA 1, 1982). In
Hanchar Industrial Waste Management, Inc v Wayne Recla
*693
mation & Recycling, Inc,