Moy v. Ng

• Decision Date: 30 June 2003
• Docket Number: No. 1-01-3024.,1-01-3024.
• Citation: 341 Ill. App.3d 984,793 N.E.2d 919,276 Ill.Dec. 160
• Parties: 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).
• Court: United States Appellate Court of Illinois

793 N.E.2d 919

341 Ill. App.3d 984

276 Ill.Dec. 160

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).

No. 1-01-3024.

Appellate Court of Illinois, First District, Third Division.

June 30, 2003.

Segal & Segal, Chicago, for Appellant.

Joel A. Brodsky, Chicago, for Appellee.

Justice HALL delivered the opinion of the court:

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.¹ 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.²

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, 2000.³

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 motions in limine.⁴

Request to Admit Facts

Ms. Wong contends that the trial court erred when it denied her motion to strike the plaintiffs' answer to her request to admit facts. Ms. Wong maintains that the plaintiff failed to comply with the requirements of Rule 216(c) (134 Ill.2d R. 216(c)).

A. Standard of Review

A reviewing court will not disturb a trial court's ruling on discovery matters unless there is a manifest abuse of discretion. Mutlu v. State Farm Fire & Casualty Co., 337 Ill.App.3d 420, 432, 271 Ill.Dec. 757, 785 N.E.2d 951, 961 (2003). However, the interpretation of a statute is a question of law, which this court reviews de novo. Advincula v. United Blood Services, 176 Ill.2d 1, 12, 223 Ill.Dec. 1, 678 N.E.2d 1009, 1015 (1996); Albazzaz v. Department of Professional Regulation, 314 Ill.App.3d 97, 105, 247 Ill.Dec. 14, 731 N.E.2d 787, 793 (2000).

B. Discussion

Under Rule 216, a party may serve a written request on another party to admit the truth of any specified relevant fact set forth in the request. 134 Ill.2d R. 216(a). Rule 216(c) provides in pertinent part as follows:

"Each of the matters of fact and the genuineness of each document of which admission is requested is admitted unless, within 28 days after service thereof, 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 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. * * * Any objection to a request or to an answer shall be heard by the court upon prompt notice and motion of the party making the request." 134 Ill.2d R. 216(c)

The failure to file a timely response to a request to admit facts—including the "ultimate" facts of a case—in accordance with Rule 216(c) results in the admission of those facts. Tires `N Tracks, Inc. v. Dominic Fiordirosa Construction Co., 331 Ill.App.3d 87, 91, 264 Ill.Dec. 908, 771 N.E.2d 612, 616 (2002). A response denying the facts that is neither timely nor sworn fails to comply with the rule. Tires `N Tracks, Inc.,331 Ill.App.3d at 91,264 Ill.Dec. 908,771 N.E.2d at 616. An admission pursuant to a request to admit facts operates as a judicial admission that is considered incontrovertible and has the effect of withdrawing a fact from contention. Tires `N Tracks, Inc.,331 Ill.App.3d at 91,264 Ill.Dec. 908,771 N.E.2d at 616.

The plaintiffs' answer to Ms. Wong's Rule 216 request was signed by the attorney for the plaintiffs and verified by him pursuant to section 1-109 of the Code of Civil Procedure (the Code) (735 ILCS 5/1-109 (West 1998) (verification of a pleading may be done by certification unless otherwise provided by the supreme court rules)).

An attorney having personal knowledge of the facts set out in a pleading is not precluded from verifying that document. Schwartz v. Great Central Insurance Co., 188 Ill.App.3d 264, 269, 135 Ill.Dec. 774, 544 N.E.2d 131, 133-34 (1989). However, while counsel may respond to pleadings, Rule 216 requires response by the parties. Magee v. Walbro, Inc., 171 Ill.App.3d 774, 780, 121 Ill.Dec. 668, 525 N.E.2d 975, 979 (1988) (in addition to its failure to be in writing, the court also rejected the argument that having the attorney respond to the request to admit facts was proper because the attorney had been allowed to respond to the allegations of an affirmative defense); see also Johannsen v. General Foods Corp., 146 Ill. App.3d 296, 99 Ill.Dec. 851, 496 N.E.2d 544 (1986) (answer to request to admit signed but not sworn to by the answering party's attorney did not comply with the requirement that denials, in whole or in part, be by the party answering the request).⁵ In this case, the answers are clearly those of one or more of the plaintiffs, not their attorney.

In addition, Rule 216(c) requires that the party responding to the request to admit facts serve the sworn statement denying the facts on the party requesting the admission. In this case, the plaintiffs acknowledge that they served an unsigned and unsworn copy of their answer to Ms. Wong's Rule 216 request on Ms. Wong's attorneys. The plaintiffs maintain that they complied with this requirement by filing the original "sworn" answer with the clerk of the circuit court as required by the local rules. See Cook Co. Cir. Ct. R. 3.1(c) (eff. May 1, 1996).

Rule 3.1(c) provides in pertinent part as follows:

"Requests for admission of fact shall be filed with the Clerk of the Circuit Court. Within twenty-eight (28) days after service of the requests, the answering party shall serve upon the party requesting the admission and file with the Clerk of the Circuit Court either a sworn statement denying specifically the matters of which admission is requested or setting forth in detail the reasons why the party cannot truthfully admit or deny those matters or a written objection to the request." (Emphasis added.) Cook Co. Cir. Ct. R. 3.1(c) (eff. May 1, 1996).

A local rule has the force of a statute and is binding on the trial court as well as the parties. Premier Electrical Construction Co. v. American National Bank of Chicago...