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Moy v. Ng

February 27, 2007

NGAN MOY, DICK MOY, TSUN MAK AND WAI YUNG MAK, PLAINTIFFS-APPELLEES,
v.
WINSEN NG, INDIVIDUALLY, 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. 04 L 1012. Honorable Barbara Disko, Judge Presiding.

The opinion of the court was delivered by: Justice Hall

The defendant, Shirley Leu-Tan Wong, appeals from a judgment in the amount of $38,800, entered against her and in favor of the plaintiffs, Ngan Moy, Dick Moy, Tsun Mak*fn1 and Wai Yung Mak, by the circuit court of Cook County. On appeal, the defendant contends that the court erred when it denied her motion for summary judgment and when it denied her motion for judgment on the pleadings at the close of the plaintiffs' case.

This is the second appeal by the defendant in this case. In Moy v. Ng, 341 Ill. App. 3d 984, 793 N.E.2d 919 (2003), the defendant appealed from a money judgment entered against her and in favor of the plaintiffs. This court held that the trial court erred in denying the defendant's motion to strike the plaintiffs' answer to her Supreme Court Rule 216 (134 Ill. 2d R. 216) request for admission of facts, and we remanded the case for a new trial with directions that the facts contained in the defendant's request to admit facts be deemed admitted. Moy, 341 Ill. App. 3d at 991-92.

On remand, the defendant filed a motion for summary judgment predicated on the plaintiffs' admissions. The plaintiffs opposed the motion, relying on the doctrine of judicial estoppel. The plaintiffs alleged that during disciplinary proceedings brought against the defendant by the Attorney Registration and Disciplinary Commission (ARDC), the defendant made statements under oath that contradicted the plaintiffs' admissions she relied on in her motion for summary judgement. The trial court denied the defendant's motion for summary judgment, finding that, even considering the plaintiffs' admissions, the ARDC proceedings and the statements made therein created questions of fact that precluded summary judgment.

At the bench trial in this case, the parties presented the transcripts of the previous trial and the ARDC proceedings for the trial court's review. Based on those records, the trial court entered judgment in favor of the plaintiffs and against the defendant in the amount of $38,800. The defendant filed a timely notice of appeal.

ANALYSIS

The defendant contends that the plaintiffs' judicial admissions entitled her to summary judgment or, in the alternative, her motion for judgment on the pleadings at the close of the plaintiffs' case should have been granted. The plaintiffs respond that the doctrine of judicial estoppel applies in this case to bar the defendant's reliance on their judicial admissions.

As a general rule, "an order denying a motion for summary judgment is not reviewable after an evidentiary trial, as any error in the denial is merged in the subsequent trial." Paz v. Commonwealth Edison, 314 Ill. App. 3d 591, 594, 732 N.E.2d 696 (2000). "The rationale for this rule is that it would be unjust to the prevailing party, who won the judgment after the evidence was more completely presented." Battles v. La Salle National Bank, 240 Ill. App. 3d 550, 558, 608 N.E.2d 438 (1992). However, where the trial does not deal with the issue in the motion for summary judgment, the summary judgment denial does not merge into the judgment. Battles, 240 Ill. App. 3d at 558 (ruling on issue of whether an accounting was necessary did not merge where jury entered its verdict on the issue of whether there was a breach of a fiduciary duty and the damages to be awarded).

Nonetheless, even if the denial of summary judgment is not reviewable in this case, we may still review the defendant's contentions in the context of whether the trial court's finding in favor of the plaintiffs was against the manifest weight of the evidence. See Paz, 314 Ill. App. 3d at 594.

"In a bench trial, a trial court's findings will not be disturbed on review unless they are against the manifest weight of the evidence." International Capital Corp. v. Moyer, 347 Ill. App. 3d 116, 121, 806 N.E.2d 1166 (2004). "A judgment is against the manifest weight of the evidence only if the opposite conclusion is apparent or when findings appear to be arbitrary, unreasonable, or not based on the evidence." Moyer, 347 Ill. App. 3d at 122.

In counts V and VI of their second amended complaint, the plaintiffs alleged that the defendant had breached her fiduciary duty and her fiduciary duty as escrowee to them. According to the plaintiffs, the defendant, a licensed attorney, agreed to serve as the joint escrowee for the plaintiffs and Winsen Ng, the contractor hired to restore the plaintiffs' building. The plaintiffs deposited $151,000 with the defendant. The defendant breached her fiduciary duties by distributing the escrowed funds without determining whether the work had been done, failing to obtain lien waivers, failing to obtain independent verification that the work was done as required by the contract, in compliance with the architect's plans and the City of Chicago building code, failing to issue the disbursement checks as joint payee with Mr. Ng and his subcontractors and failing to require proof of payment to Mr. Ng's subcontractors and for the purchase of building materials. The plaintiffs alleged that the defendant disbursed $151,000 as escrowee that was not used in the restoration of the plaintiffs' building.

Where a party fails to properly respond to a Rule 216 request to admit facts, those factual matters in the request are deemed judicial admissions which cannot later be controverted by any contrary evidence. Robertson v. Sky Chefs, Inc., 344 Ill. App. 3d 196, 199, 799 N.E.2d 852 (2003). Such an admission is considered incontrovertible and has the effect of withdrawing a fact from contention. Tires 'N Tracks v. Dominic Fiordirosa Construction Co., 331 Ill. App. 3d 87, 91, 771 N.E.2d 612 (2002). However, "if the request seeks the admission of a conclusion of law, the request is improper in form and the opposing party's failure to respond does not result in an admission." Banco Popular v. Beneficial Systems, Inc., 335 Ill. App. 3d 196, 209, 780 N.E.2d 1113 (2002).

The plaintiffs' failure to respond to the defendant's Rule 216 request resulted in their admission to the following pertinent facts: (1) the defendant never had any agreements with the plaintiffs; (2) the defendant did not represent the plaintiffs; (3) the agreement for the defendant to hold certain monies to be distributed to the contractor was between the defendant and the New Asian Bank; (4) a representative of the New Asian Bank inspected the building premises prior to the distribution of the funds; and (5) all monies received by the defendant from the New Asian Bank were properly distributed to the contractor upon a receipt. However, the request to admit that the defendant owed no duty to the plaintiffs sought a legal conclusion and therefore was not an admission. See Chandler v. Illinois Central R.R. Co., 207 Ill. 2d 331, 340, 798 N.E.2d 724 (2003) ("The existence of a duty is a question of law for the court to decide").

In her affidavit as to discipline on consent, the defendant agreed that the following assertions in the petition to impose discipline on consent were true: (1) the defendant agreed to serve as escrowee for insurance proceeds earmarked for the restoration of the plaintiffs' building and to open a separate escrow account; (2) the defendant deposited an insurance proceeds check in the amount of $117,000 in her existing checking account, not a client fund account; (3) between December 3, 1996, and December 12, 1996, the defendant distributed $78,000 to the plaintiffs' contractor and his suppliers, which should have left $38,800 in insurance proceeds in the account; (4) as of December 12, 1996, only $502.86 remained in the defendant's account; (5) by December 12, 1996, the defendant had, without authority, used $38,297.14 of ...


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