Illinois Appellate Court Decides Case of Timely Service When Reply Mailed

The Illinois Appellate Court has affirmed in part and reversed and remanded in part a decision of a Cook County Circuit Court judge. In this case, Osep Armagan filed a lawsuit against Michael, Kathy and Stephen Pesha, individually and as agents for Gold Dust Coins. Armagan claimed that he gave Gold Dust 253 gold coins for safekeeping. When he later demanded that the coins be returned to him, the defendants refused to do so.

Gold Dust denied all of the material facts alleged in the plaintiff’s complaint, and then the plaintiff served Michael Pesha with a request to admit facts. The request was sent on Nov. 18, 2010. Pesha filed his response with the Clerk of the Circuit Court and mailed his response to Armagan on Dec. 17, 2010. On Dec. 30, 2010, Armagan moved to deem all requested admissions of fact admitted because of the late receipt of the response. Armagan argued that the response was not served on him within 28 days as required by Illinois Supreme Court Rule 12. According to that rule, service by mail is considered completed after 4 days after mailing, meaning that the Gold Dust notice was completed on Nov. 22 and service to Armagan was completed on Dec. 21, one day past the 28-day deadline.

Pesha argued that he served his response in a timely fashion by filing it on Dec. 17. The court granted Armagan’s motion and ordered all requested facts admitted.

Pesha moved to reconsider noting that even if his service was untimely, the court could at its discretion allow the late response for good cause. Armagan replied that the request for more time was itself untimely and that even if the motion had been timely, he had failed to provide the court with evidence of good cause for his late filing.

The circuit court judge agreed that Pesha failed to explain why he hadn’t signed the response before he left town on Dec. 13, 2010 or show why he hadn’t requested more time at the appropriate juncture if it was not feasible to sign the response.

On Armagan’s motion for summary judgment regarding the coins that were given to Gold Dust and never returned, the court agreed and entered judgment against Gold Dust. In addition, Armagan received a judgment of nearly $460,000. Gold Dust appealed.

Gold Dust argued first that by mailing the response of Pesha on the request to admit on Dec. 17, 2010, he had responded in a timely fashion. The appellate court agreed. The court acknowledged that receipt of service started the clock tolling on when service was untimely, but emphasized that the moment Pesha had mailed the reply, it had been “served” even though it would be days before it was received.

The reply to the request to admit was mailed on Dec. 17, 2010, three days before the 28-day deadline expired.

In addition, the appellate court found that the response to the request to admit facts was unsigned by Pesha because he had left for out of town could have been a considered a request for an extension of time. The appellate court found that the trial court should have considered it a request to extend and should have granted the motion for an extension of time to respond to the request to admit. Therefore, the appellate court vacated the trial court’s order deeming the facts of the case admitted.

The appellate court then took a look at the motion for summary judgment and reversed the trial court’s decision. The trial court’s summary judgment decision relied on the facts admitted. The appellate court vacated the motion that admitted the facts as being true.

The appellate court would not however grant Gold Dust’s motion to dismiss. Instead, the court reversed and remanded the case back to a trial judge for further proceedings.

Osep Armagan, M.D. v. Michael Pesha, et al., 2014 IL App (1st) 121840 (March 4, 2014).

Kreisman Law Offices has been handling contract disputes, business litigation and commercial litigation for individuals and businesses for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Brookfield, Maywood, Schaumburg, Elgin, Aurora, Geneva, St. Charles, Berwyn, Elmwood Park, Melrose Park, Forest Park, Park Forest, Franklin Park and Hanover Park, Ill.

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