{ "id": 4269114, "name": "NGAN MOY et al., Plaintiffs-Appellees, v. WINSEN NG, Indiv. and d/b/a Chicago N.A. Construction, Ltd., Defendants (Shirley Leu-Tan Wong, Defendant-Appellant)", "name_abbreviation": "Moy v. Ng", "decision_date": "2007-02-27", "docket_number": "No. 1\u201405\u20141330", "first_page": "957", "last_page": "964", "citations": [ { "type": "official", "cite": "371 Ill. App. 3d 957" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "672 N.E.2d 820", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "after refusing to review the denial of summary judgment, the reviewing court addressed the merits of the denial of the motion for judgment on the pleadings" } ], "opinion_index": 0 }, { "cite": "284 Ill. App. 3d 865", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3474483 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "459" }, { "page": "466" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/342/0453-01" ] }, { "cite": "794 N.E.2d 251", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "206 Ill. 2d 65", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1578352 ], "year": 2002, "pin_cites": [ { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/206/0065-01" ] }, { "cite": "675 N.E.2d 647", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "285 Ill. App. 3d 545", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1295591 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "550" }, { "page": "549" }, { "page": "551" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/285/0545-01" ] }, { "cite": "798 N.E.2d 724", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "parenthetical": "\"The existence of a duty is a question of law for the court to decide\"" } ], "opinion_index": 0 }, { "cite": "207 Ill. 2d 331", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 974987 ], "year": 2003, "pin_cites": [ { "page": "340", "parenthetical": "\"The existence of a duty is a question of law for the court to decide\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/207/0331-01" ] }, { "cite": "780 N.E.2d 1113", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "335 Ill. App. 3d 196", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 637088 ], "year": 2002, "pin_cites": [ { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/335/0196-01" ] }, { "cite": "771 N.E.2d 612", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "331 Ill. App. 3d 87", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1209149 ], "year": 2002, "pin_cites": [ { "page": "91" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/331/0087-01" ] }, { "cite": "799 N.E.2d 852", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "344 Ill. App. 3d 196", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3777825 ], "year": 2003, "pin_cites": [ { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/344/0196-01" ] }, { "cite": "806 N.E.2d 1166", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "347 Ill. App. 3d 116", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3949842 ], "weight": 5, "year": 2004, "pin_cites": [ { "page": "121" }, { "page": "122" }, { "page": "122" }, { "page": "123" }, { "page": "123" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/347/0116-01" ] }, { "cite": "608 N.E.2d 438", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "240 Ill. App. 3d 550", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5135912 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "558" }, { "page": "558", "parenthetical": "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" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/240/0550-01" ] }, { "cite": "732 N.E.2d 696", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "314 Ill. App. 3d 591", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 140100 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "594" }, { "page": "594" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/314/0591-01" ] }, { "cite": "793 N.E.2d 919", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "341 Ill. App. 3d 984", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5572492 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "991-92" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/341/0984-01" ] } ], "analysis": { "cardinality": 780, "char_count": 15966, "ocr_confidence": 0.764, "pagerank": { "raw": 6.047112345836057e-08, "percentile": 0.3743523271047849 }, "sha256": "bc47db30ac70b472b555ea5cc5a84965ea51551d2bf288ff06716b2ebfa0ba1c", "simhash": "1:72813c94235bb761", "word_count": 2609 }, "last_updated": "2023-07-14T20:39:36.954096+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "NGAN MOY et al., Plaintiffs-Appellees, v. WINSEN NG, Indiv. and d/b/a Chicago N.A. Construction, Ltd., Defendants (Shirley Leu-Tan Wong, Defendant-Appellant)." ], "opinions": [ { "text": "JUSTICE HALL\ndelivered the opinion of the court:\nThe 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 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\u2019 case.\nThis 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\u2019s motion to strike the plaintiffs\u2019 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\u2019s request to admit facts be deemed admitted. Moy, 341 Ill. App. 3d at 991-92.\nOn remand, the defendant filed a motion for summary judgment predicated on the plaintiffs\u2019 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\u2019 admissions she relied on in her motion for summary judgement. The trial court denied the defendant\u2019s motion for summary judgment, finding that, even considering the plaintiffs\u2019 admissions, the ARDC proceedings and the statements made therein created questions of fact that precluded summary judgment.\nAt the bench trial in this case, the parties presented the transcripts of the previous trial and the ARDC proceedings for the trial court\u2019s 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.\nANALYSIS\nThe defendant contends that the plaintiffs\u2019 judicial admissions entitled her to summary judgment or, in the alternative, her motion for judgment on the pleadings at the close of the plaintiffs\u2019 case should have been granted. The plaintiffs respond that the doctrine of judicial estoppel applies in this case to bar the defendant\u2019s reliance on their judicial admissions.\nAs a general rule, \u201can 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.\u201d Paz v. Commonwealth Edison, 314 Ill. App. 3d 591, 594, 732 N.E.2d 696 (2000). \u201cThe 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.\u201d 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).\nNonetheless, even if the denial of summary judgment is not reviewable in this case, we may still review the defendant\u2019s contentions in the context of whether the trial court\u2019s finding in favor of the plaintiffs was against the manifest weight of the evidence. See Paz, 314 Ill. App. 3d at 594.\n\u201cIn a bench trial, a trial court\u2019s findings will not be disturbed on review unless they are against the manifest weight of the evidence.\u201d International Capital Corp. v. Moyer, 347 Ill. App. 3d 116, 121, 806 N.E.2d 1166 (2004). \u201cA 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.\u201d Moyer, 347 Ill. App. 3d at 122.\nIn 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\u2019 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\u2019s 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\u2019s 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\u2019 building.\nWhere 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 \u2019N Tracks v. Dominic Fiordirosa Construction Co., 331 Ill. App. 3d 87, 91, 771 N.E.2d 612 (2002). However, \u201cif the request seeks the admission of a conclusion of law, the request is improper in form and the opposing party\u2019s failure to respond does not result in an admission.\u201d Banco Popular v. Beneficial Systems, Inc., 335 Ill. App. 3d 196, 209, 780 N.E.2d 1113 (2002).\nThe plaintiffs\u2019 failure to respond to the defendant\u2019s 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) (\u201cThe existence of a duty is a question of law for the court to decide\u201d).\nIn 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\u2019 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\u2019 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\u2019s account; (5) by December 12, 1996, the defendant had, without authority, used $38,297.14 of the plaintiffs\u2019 insurance proceeds to pay her own personal and business expenses; and (6) on January 31, 1997, the defendant deposited $34,000 in additional insurance proceeds into her existing checking account.\n\u201cIn order to state a claim for breach of fiduciary duty, it must be alleged that a fiduciary duty exists, that the fiduciary duty was breached, and that such breach proximately caused the injury of which the plaintiff complains.\u201d Moyer, 347 Ill. App. 3d at 122. \u201cEscrowees have been found to owe a fiduciary duty both to the party making the deposit and the party for whose benefit it is made.\u201d Moyer, 347 Ill. App. 3d at 123. \u201cUnder this analysis, the escrowee owes a duty to act only in accordance with the escrow instructions.\u201d Moyer, 347 Ill. App. 3d at 123.\nIn the context of a cause of action for breach of fiduciary duty, the plaintiffs\u2019 admissions established that the defendant entered into an escrow agreement with New Asian Bank. Even though the plaintiffs admitted that the defendant did not represent them or have an agreement with them with respect to the escrow, since the escrow was for the plaintiffs\u2019 benefit, she could still be found to owe a duty to them. However, the plaintiffs\u2019 admissions contradicted their allegation that the defendant breached her fiduciary duty to them, by admitting that the building had been inspected prior to the distribution of the insurance funds and that all the monies received from the New Asian Bank were properly distributed to the contractor upon a receipt. The question then becomes whether the plaintiffs\u2019 judicial admissions may be overborne by the application of the doctrine of judicial estoppel.\n\u201cJudicial estoppel provides that a party who assumes a particular position in a legal proceeding is estopped from assuming a contrary position in a subsequent legal proceeding.\u201d Bidani v. Lewis, 285 Ill. App. 3d 545, 550, 675 N.E.2d 647 (1996). \u201c \u2018The doctrine of judicial estoppel rests upon public policy which upholds the sanctity of the oath and its purpose is to bar as evidence statements and declarations which would be contrary to sworn testimony the party has given in the same or previous judicial proceedings.\u2019 \u201d Bidani, 285 Ill. App. 3d at 549. \u201c[Jjudicial estoppel focuses on the relationship between the litigant and the judicial system.\u201d Bidani, 285 Ill. App. 3d at 551.\n\u201cFive elements are generally required for the doctrine of judicial estoppel to apply: the party to be estopped must have (1) taken two positions, (2) that are factually inconsistent, (3) in separate judicial or quasi-judicial administrative proceedings, (4) intending for the trier of fact to accept the truth of the facts alleged, and (5) have succeeded in the first proceeding and received some benefit from it.\u201d People v. Caballero, 206 Ill. 2d 65, 80, 794 N.E.2d 251 (2002). The application of the doctrine of judicial estoppel is reviewed under the abuse of discretion standard. Barack Ferrazzano Kirschbaum Perlman & Nagelberg v. Loffredi, 342 Ill. App. 3d 453, 459, 775 N.E.2d 779 (2003).\nThe first, second and fourth elements are satisfied in that before the ARDC, the defendant acknowledged under oath that she had used the plaintiffs\u2019 insurance funds to pay her own bills and expenses, while in the circuit court, she chose to rely on the plaintiffs\u2019 judicial admission that she had properly disbursed the insurance funds to prevail on her motions. The third element is satisfied in that the ARDC hearing was a quasi-judicial administrative proceeding. See 166 Ill. 2d R 753 (inquiry, hearing and review boards); 155 Ill. 2d R. 754 (subpoena power); see also Zych v. Tucker, 363 Ill. App. 3d 831, 835, 844 N.E.2d 1004 (2006) (setting forth the powers that differentiate a quasi-judicial body from a body performing merely an administrative function).\nThe defendant maintains that the fifth element cannot be satisfied because she did not prevail in the ARDC proceeding. We disagree. In Teledyne Industries, Inc. v. NLRB, 911 F.2d 1214, 1218 (6th Cir. 1990), the court declined to apply judicial estoppel, in part, because the parties had entered into agreed orders that contained no admissions or findings of law or fact. Teledyne Industries, Inc., 911 F.2d at 1219. In contrast, as part of the settlement of the ARDC complaint, the defendant acknowledged, by way of affidavit, her personal use of the plaintiffs\u2019 insurance funds.\nThe application of judicial estoppel in this case does not serve to contradict the facts established by the plaintiffs\u2019 admissions. Rather, the doctrine bars the defendant from utilizing those facts to prevail in this case. \u201c \u2018[Judicial estoppel] is to be applied where \u201cintentional self-contradiction is being used as a means of obtaining unfair advantage in a forum designed for suitors seeking justice,\u201d [citation], to prevent litigants from \u201cplaying fast and loose with the courts.\u201d \u2019 \u201d Loffredi, 342 Ill. App. 3d at 466, quoting In re Cassidy, 892 F.2d 637, 641 (7th Cir. 1990), quoting Scarano v. Central R. Co. of New Jersey, 203 F.2d 510, 513 (3d Cir. 1953).\nApplying the doctrine of judicial estoppel, we determine that the plaintiffs\u2019 judicial admissions were overborne by the defendant\u2019s admissions in the ARDC proceedings. Therefore, the trial court\u2019s judgment in favor of the plaintiffs was not against the manifest weight of the evidence.\nLikewise, judicial estoppel barred the defendant from utilizing the plaintiffs\u2019 judicial admissions to prevail on her motion for judgment on the pleadings. \u201c \u2018 \u201cJudgment on the pleadings is proper only if questions of law, not of fact, exist after the pleadings have been filed.\u201d [Citation.]\u2019 \u201d County of Cook v. Philip Morris, Inc., 353 Ill. App. 3d 55, 59, 817 N.E.2d 1039 (2004), quoting Chicago Title & Trust Co. v. Steinitz, 288 Ill. App. 3d 926, 934, 681 N.E.2d 669 (1997), quoting Millers Mutual Insurance Ass\u2019n v. Graham Oil Co., 282 Ill. App. 3d 129, 134, 668 N.E.2d 223 (1996). Because judicial estoppel applied, the trial court properly decided the case in the plaintiffs\u2019 favor based upon the defendant\u2019s admissions in the ARDC proceedings.\nFinally, the defendant contends that the trial court erred when it failed to incorporate properly the plaintiffs\u2019 judicial admissions in its decision. The defendant waived this argument by failing to support it with any citation to authority, in violation of Supreme Court Rule 341(h)(7). 210 Ill. 2d R. 341(h)(7).\nIn any event, the defendant\u2019s argument lacks merit. The necessary corollary of the doctrine of judicial estoppel is that the trial court\u2019s role as fact finder is eliminated. Ceres Terminals, Inc. v. Chicago City Bank & Trust Co., 259 Ill. App. 3d 836, 856, 635 N.E.2d 485 (1994). \u201cAccordingly, courts have warned that the doctrine of judicial estoppel is \u2018an extraordinary one which should be applied with caution [citation], because it \u201cprecludes a contradictory position without examining the truth of either statement.\u201d \u2019 \u201d Ceres Terminals, Inc., 259 Ill. App. 3d at 856-57, quoting Scott v. Land Span Motor, Inc., 781 F. Supp. 1115, 1119 (D.S.C. 1991), quoting Teledyne Industries, Inc., 911 F.2d at 1218. The application of judicial estoppel in this case precluded the use of the plaintiffs\u2019 judicial admissions and, therefore, the failure to incorporate the admissions was not error.\nThe judgment of the circuit court is affirmed.\nAffirmed.\nHOFFMAN and SOUTH, JJ., concur.\nThe death of Tsun Mak was spread of record during the circuit court proceedings.\nThe rule barring review of the denial of a summary judgment motion does not bar review of the denial of motions for judgment on the pleadings. See Elane v. St. Bernard Hospital, 284 Ill. App. 3d 865, 869-70, 672 N.E.2d 820 (1996) (after refusing to review the denial of summary judgment, the reviewing court addressed the merits of the denial of the motion for judgment on the pleadings).", "type": "majority", "author": "JUSTICE HALL" } ], "attorneys": [ "Donald W Segal, of Segal & Segal, of Chicago, for appellant.", "Joel A. Brodsky, of Brodsky & Odeh, of Chicago, for appellees." ], "corrections": "", "head_matter": "NGAN MOY et al., Plaintiffs-Appellees, v. WINSEN NG, Indiv. and d/b/a Chicago N.A. Construction, Ltd., Defendants (Shirley Leu-Tan Wong, Defendant-Appellant).\nFirst District (2nd Division)\nNo. 1\u201405\u20141330\nOpinion filed February 27, 2007.\nDonald W Segal, of Segal & Segal, of Chicago, for appellant.\nJoel A. Brodsky, of Brodsky & Odeh, of Chicago, for appellees." }, "file_name": "0957-01", "first_page_order": 975, "last_page_order": 982 }