                                     SECOND DIVISION
                                     Date Filed: February 27, 2007

No. 1-05-1330



NGAN MOY, DICK MOY, TSUN MAK        )   Appeal from the
and WAI YUNG MAK,                   )   Circuit Court of
                                    )   Cook County.
         Plaintiffs-Appellees,      )
                                    )
         v.                         )   No. 04 L 1012
                                    )
WINSEN NG, Individually, and        )
doing business as Chicago N.A.      )
Construction, Ltd.,                 )
                                    )
         Defendants                 )   Honorable
                                    )   Barbara Disko,
(Shirley Leu-Tan Wong,              )   Judge Presiding.
                                    )
         Defendant-Appellant).      )


     JUSTICE HALL delivered the opinion of the court:

     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 Mak1 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


     1
         The death of Tsun Mak was spread of record during the

circuit court proceedings.
No. 1-05-1330

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


                                 2
No. 1-05-1330

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


                                  3
No. 1-05-1330

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


                                 4
No. 1-05-1330

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,


                                  5
No. 1-05-1330

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


                                 6
No. 1-05-1330

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 the plaintiffs' 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.

     "In 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."   Moyer, 347 Ill. App.

3d at 122.   "Escrowees have been found to owe a fiduciary duty

both to the party making the deposit and the party for whose

benefit it is made."   Moyer, 347 Ill. App. 3d at 123.   "Under

this analysis, the escrowee owes a duty to act only in accordance

with the escrow instructions."   Moyer, 347 Ill. App. 3d at 123.

     In the context of a cause of action for breach of fiduciary

duty, the plaintiffs' admissions established that the defendant

entered into an escrow agreement with New Asian Bank.    Even


                                 7
No. 1-05-1330

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' benefit, she

could still be found to owe a duty to them.      However, the

plaintiffs' 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'

judicial admissions may be overborne by the application of the

doctrine of judicial estoppel.

       "Judicial 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."

Bidani v. Lewis, 285 Ill. App. 3d 545, 550, 675 N.E.2d 647

(1996).    "'The 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.'"       Bidani, 285 Ill. App. 3d at

549.    "[J]udicial estoppel focuses on the relationship between

the litigant and the judicial system."       Bidani, 285 Ill. App. 3d


                                   8
No. 1-05-1330

at 551.

     "Five 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."    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).

     The first, third and fourth elements are satisfied in that

before the ARDC, the defendant acknowledged under oath that she

had used the plaintiffs' insurance funds to pay her own bills and

expenses, while in the circuit court, she chose to rely on the

plaintiffs' 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


                                  9
No. 1-05-1330

1004 (2006) (setting forth the powers that differentiate a quasi-

judicial body from a body performing merely an administrative

function).

     The 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' insurance funds.

     The application of judicial estoppel in this case does not

serve to contradict the facts established by the plaintiffs'

admissions.   Rather, the doctrine bars the defendant from

utilizing those facts to prevail in this case.    "'[Judicial

estoppel] is to be applied where "intentional self-contradiction

is being used as a means of obtaining unfair advantage in a forum

designed for suitors seeking justice," [citation], to prevent

litigants from "playing fast and loose with the courts."'"

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.


                                 10
No. 1-05-1330

of New Jersey, 203 F.2d 510, 513 (3d Cir. 1953).

     Applying the doctrine of judicial estoppel, we determine

that the plaintiffs' judicial admissions were overborne by the

defendant's admissions in the ARDC proceedings.     Therefore, the

trial court's judgment in favor of the plaintiffs was not against

the manifest weight of the evidence.

     Likewise, judicial estoppel barred the defendant from

utilizing the plaintiffs' judicial admissions to prevail on her

motion for judgment on the pleadings.2     "'"Judgment on the

pleadings is proper only if questions of law, not of fact, exist

after the pleadings have been filed." [Citation.]'"     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'n v. Graham Oil Co., 282 Ill. App. 3d 129,

134, 668 N.E.2d 223 (1996).     Because judicial estoppel applied,

     2
         The 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).

                                  11
No. 1-05-1330

the trial court properly decided the case in the plaintiffs'

favor based upon the defendant's admissions in the ARDC

proceedings.

     Finally, the defendant contends that the trial court erred

when it failed to incorporate properly the plaintiffs' 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).

     In any event, the defendant's argument lacks merit.       The

necessary corollary of the doctrine of judicial estoppel is that

the trial court's 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).   "Accordingly, courts have

warned that the doctrine of judicial estoppel is 'an

extraordinary one which should be applied with caution

[citation], because it "precludes a contradictory position

without examining the truth of either statement."'"    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' judicial admissions and, therefore, the


                                12
No. 1-05-1330

failure to incorporate the admissions was not error.

     The judgment of the circuit court is affirmed.

     Affirmed.

     HOFFMAN and SOUTH, JJ., concur.




                               13
