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Moy v. NG

June 30, 2003

NGAN MOY, DICK MOY, TSUN MAK, AND WAI YUNG MAK, PLAINTIFFS-APPELLEES,
v.
WINSEN NG, AN INDIVIDUAL, AND DOING BUSINESS AS CHICAGO N.A. CONSTRUCTION LTD., DEFENDANTS, (SHIRLEY LEU-TAN WONG, DEFENDANT-APPELLANT).



Appeal from the Circuit Court of Cook County. No. 97 L 10252 Honorable Peter Flynn and Sheldon Gardner Judges Presiding.

The opinion of the court was delivered by: Justice Hall

UNPUBLISHED

The plaintiffs, Ngan Moy, Dick Moy, Tsun Mak and Wai Yung Mak, brought a complaint for damages against the defendants, Winsen NG, Chicago N.A. Construction Ltd., and Shirley Wong. An ex parte judgment was entered against Winsen Ng and Chicago N.A. Construction Ltd., and neither is a party to this appeal.

In their complaint, the plaintiffs alleged that Ms. Wong breached her duties owed to the plaintiffs as a fiduciary and an escrowee. Following a bench trial, the trial court entered judgment against Ms. Wong in the amount of $118,269.12 plus court costs. Ms. Wong appeals.

On appeal, Ms. Wong contends that the trial court erred when it denied her motion to strike the plaintiffs' answer to her request to admit facts pursuant to Supreme Court Rule 216 (134 Ill. 2d R. 216). Because we find this issue to be dispositive of this appeal, we will confine our discussion of the facts to those pertinent to that issue.

On July 28, 1999, Ms. Wong served her Rule 216 request to admit facts and genuineness of documents on the plaintiffs. *fn1 On August 10, 1999, the plaintiffs filed their answer to Ms. Wong's Rule 216 request. The answer was not signed or sworn to. On that same date, the plaintiffs filed another answer to the Rule 216 request. However, this answer was signed and verified by the plaintiffs' attorney. On October 13, 1999, Ms. Wong filed a motion to strike the plaintiffs' answer to her Rule 216 request. On November 17, 1999, a hearing was held on the motion to strike. The plaintiffs' attorney did not dispute that the copy of the plaintiffs' answer to the Rule 216 request sent to Ms. Wong's attorneys was unsigned and unsworn to, but noted that he had filed the original, which he had signed and verified, with the circuit court. The plaintiffs' attorney pointed out that the local circuit court rules required that the answer be filed with the circuit court. In denying Ms. Wong's motion to strike, Judge Sheldon Gardner stated as follows:

"Now, I don't have to get to the point of whether or not verification is required because the standard in our state is that general rules are modified by local rules. The local rules call for a filing, there is no issue that the document filed was verified.

I think that Mr. Segal's [Ms. Wong's attorney] arguments are not well taken in that they are dealing with the timeliness of the issue, not with the issue of verification and the remedy of being verified. If the local copy were not verified, our issue - - the final copy were not verified, our issue would be different."

On June 27, 2000, Judge Loretta Douglas denied a motion in limine filed by Ms. Wong but ordered the plaintiffs to serve an additional copy of the request to admit facts, signed by "Plaintiff," on Ms. Wong's attorney prior to trial. *fn2

The record then reflects another answer to the Rule 216 request, file-stamped August 10, 1999, was filed. This one was signed by the plaintiffs' attorney, but verified by Ngan Moy, one of the plaintiffs. The proof of service states that it was served on July 3, 2000, on Ms. Wong's attorneys, having been "previously served filed" on August 10, 2000. *fn3

On September 11, 2000, Ms. Wong filed a second motion in limine to strike the plaintiffs' answer to her Rule 216 request, filed on July 3, 2000. Ms. Wong argued that the plaintiffs had not shown "good cause" to allow them to serve their answer and that the document still did not conform to the signing and sworn-to requirements of Rule 216. On September 15, 2000, Ms. Wong filed a third motion in limine. In this motion, Ms. Wong acknowledged receiving a copy of the plaintiffs' answer, signed by plaintiffs' attorney and verified by plaintiff Ngan Moy. Ms. Wong again argued that the "good cause" requirement was not fulfilled by the plaintiffs, that the answer contained untrue statements in regard to the filing and service of the answer and that the answer was not signed by all four plaintiffs.

On September 15, 2000, the plaintiffs filed a response to Ms. Wong's motions in limine and for sanctions pursuant to Supreme Court Rule 137 (155 Ill. 2d R. 137).

On September 19, 2000, Judge Peter Flynn denied Ms. Wong's ...


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