Cruz v. Puerto Rican Soc.

• Decision Date: 31 March 1987
• Docket Number: Nos. 2-86-0614,2-86-0771,s. 2-86-0614
• Citation: 106 Ill.Dec. 867,154 Ill.App.3d 72,506 N.E.2d 667
• Parties: , 106 Ill.Dec. 867 Virginia CRUZ, Administrator of the Estate of Gilberto Cruz, Deceased, Adam Christopher Cruz, Rebecca Lynne McSperran, and John Gallegos, minor children of the Deceased, Plaintiffs-Appellants, v. PUERTO RICAN SOCIETY, an Illinois not-for-profit Corporation, and Dalsen, Inc., d/b/a Dillingers, an Illinois Corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 667

506 N.E.2d 667

154 Ill.App.3d 72, 106 Ill.Dec. 867

Virginia CRUZ, Administrator of the Estate of Gilberto Cruz,

Deceased, Adam Christopher Cruz, Rebecca Lynne

McSperran, and John Gallegos, minor children of the Deceased, Plaintiffs-Appellants, v. PUERTO RICAN SOCIETY, an Illinois not-for-profit

Corporation, and Dalsen, Inc., d/b/a Dillingers,

an Illinois Corporation, Defendants-Appellees.

Nos. 2-86-0614, 2-86-0771.

Appellate Court of Illinois,

Second District.

March 31, 1987.

JoAnn L. Nieman, Wheeling, for plaintiffs-appellants.

Bresnahan, Garvey, O'Halloran & Coleman, Kenneth T. Garvey, Douglas A. Miller, Chicago, for defendants-appellees.

Justice WOODWARD delivered the opinion of the court:

Plaintiff, Virginia Cruz, as administrator of the estate of Gilberto Cruz, deceased, appeals the dismissal of two counts of her three-count complaint seeking recovery for loss of support under section 6-21 of the Dramshop Act (hereinafter Act). (Ill.Rev.Stat.1983, ch. 43, par. 135.) The trial court dismissed counts I and II on the ground that neither an intoxicated person nor his estate may recover under the Act for loss of support.

Plaintiff filed her complaint October 18, 1985, in the circuit court of Lake County. In the complaint, Virginia Cruz brings this action in her capacity as administrator of her late husband's estate, for the use of herself, her children, Adam Cruz, Rebbecca Lynne McSperran, and John Gallegos, as plaintiffs, as the widow and minor children of the decedent respectively. It named as defendant in count I the Puerto Rican Society (the society), an Illinois not-for-profit corporation. In count II, Dalson, Inc., doing business as Dillinger's, was named defendant. In both counts I and II, plaintiff sought to hold the defendants liable for having served liquor to the decedent and thereby causing his fatal accident. Count III of the complaint names the Puerto Rican Society defendant and alleges that said society caused the intoxication of a third party and that the third party operated the motor vehicle that collided with the decedent.

The complaint, in counts I and II, alleged that on October 21, 1984, the decedent had been served alcoholic beverages on premises operated by defendants, thereby becoming intoxicated. Subsequently, as a result of this intoxication, he was struck and killed by an automobile while crossing a street in Waukegan.

On January 27, 1986, Dalsen moved to dismiss count II of the complaint on the ground that a person who voluntarily becomes intoxicated has no cause of action for his injuries under the Dramshop Act. The court granted Dalsen's motion on April 30, 1986, and dismissed count II with prejudice. The court found that there was no just reason to delay enforcement or appeal of its order, pursuant to Supreme Court Rule 304(a). (103 Ill.2d R. 304(a).) Plaintiff filed a motion to vacate which the court denied on June 4, 1986. On July 2, 1986, plaintiff moved to file an amended complaint. The only change in the amended complaint was the naming of Virginia Cruz as mother and next friend of the minor children rather than as administrator of Gilberto's estate. The court denied this motion the same day, and the following day, July 3, 1986, plaintiff filed her notice of appeal.

On July 21, 1986, the society filed a motion to dismiss counts I and III on the grounds that a voluntarily intoxicated person may not maintain an action based on the Dramshop Act and that a 1985 amendment to section 6-21 abolished the cause of action for loss of support under the Act. Plaintiff filed a response and also renewed her motion to file her amended complaint. In an order entered October 14, 1986, the court granted the society's motion as to count I, but denied it as to count III, which remains pending in the trial court. The court's order states that its basis for dismissing count I was that an intoxicated person may not maintain an action against the dramshop owner under the Act, citing Gora v. 7-11 Food Stores (1982), 109 Ill.App.3d 109, 64 Ill.Dec. 727, 440 N.E.2d 279. The court also denied plaintiff leave to file her amended complaint. Plaintiff filed her notice of appeal as to count I on August 19, 1986.

Pursuant to plaintiff's motion, this court ordered the appeals from count I and count II consolidated. However, there can be no appeal from a nonfinal order unless specifically authorized by the Supreme Court Rules (see 103 Ill.2d R. 304; 87 Ill.2d Rules 307, 308; Zimmerman v. 1660 Condominium Association (1984), 126 Ill.App.3d 71, 81 Ill.Dec. 356, 466 N.E.2d 1158; JFS v. ABMJ (1983), 120 Ill.App.3d 261, 75 Ill.Dec. 908, 458 N.E.2d 76). Since the trial court's dismissal of count I did not serve to terminate the litigation between the plaintiff and the defendant Puerto Rican Society, and since the society is also named in count III which remains pending before the trial court, the dismissal of count I is not a final order. (See, e.g., Flores v. Dugan (1982), 91 Ill.2d 108, 61 Ill.Dec. 783, 435 N.E.2d 480; In re Marriage of Rossi (1981), 100 Ill.App.3d 669, 56 Ill.Dec. 214, 427 N.E.2d 294.) We now hold, therefore, that plaintiff's motion to consolidate the appeals from counts I and II be denied as count I is not a final and appealable order.

Dalsen adopts as its primary argument on appeal the alternative argument of the society in its motion to dismiss, namely, that the 1985 amendment to section 6-21 specifically abolished the cause of action set forth in plaintiff's complaint. Although Dalsen never made this argument in the trial court, this court may affirm the circuit court's judgment on any basis which appears in the record. (Bell v. Louisville & Nashville R.R. Co. (1985), 106 Ill.2d 135, 88 Ill.Dec. 69, 478 N.E. 384; Alexander v. DePaepe (1986), 148 Ill.App.3d 831, 102 Ill.Dec. 285, 499 N.E.2d 1065.) Further, this court may take judicial notice of the statutes of this State.

At the time of the accident at issue, October 21, 1984, section 6-21 of the Dramshop Act read as follows:

"An action shall lie for injuries to means of support caused by an intoxicated person or in consequence of the intoxication, habitual or otherwise, of any person resulting as hereinabove set out." (Ill.Rev.Stat.1983, ch. 43, par. 135.)

Courts had consistently held that this remedy was available to the family of the inebriate. (Bejnarowicz v. Bakos (1947), 332 Ill. 151, 155-56, 74 N.E.2d 614; Jeffries v. Alexander (1914), 266 Ill. 49, 107 N.E. 146; Knierim v. Izzo (1961), 22 Ill.2d 73, 174 N.E.2d 157; Cox v. Hrasky (1943), 318 Ill.App. 287, 47 N.E.2d 728; Herring v. Ervin (1892), 48 Ill.App. 369, 370-71.) Subsequently, the legislature amended the Act (P.A. 84-271, sec. 1, eff. Sept. 12, 1985) by adding the following paragraph:

"Nothing in this Act shall be construed to confer a cause of action for injuries to the person or property of the intoxicated person himself, nor shall anything in this Act be construed to confer a cause of action for loss of means of support on the intoxicated person himself or on any person claiming to be supported by such intoxicated person." Ill.Rev.Stat.1985, ch. 43, par. 135.

Defendant argues that P.A. 84-271 had the effect of cutting off plaintiff's cause of action. Plaintiff contends that the amendment should be applied prospectively. The general rule is that retroactive application of statutes is not favored. (See Matviuw v. Johnson (1982), 111 Ill.App.3d 629, 67 Ill.Dec. 370, 444 N.E.2d 606; Hill v. Butler (1982), 107 Ill.App.3d 721, 63 Ill.Dec. 385, 437 N.E.2d 1307.) The general rule, however, applies only where vested rights are involved. (See People ex rel. Eitel v. Lindheimer (1939), 371 Ill. 367, 21 N.E.2d 318, appeal dismissed sub nom. People ex rel. Eitel v. Toman (1939), 308 U.S. 505, 60 S.Ct. 111, 84 L.Ed. 432; Griffin v. City of North Chicago (1983), 112 Ill.App.3d 901, 68 Ill.Dec. 183, 445 N.E.2d 827.) A right which did not exist at common law, but is purely a creation of statute, may be abrogated by retroactive application of the repealing legislation. (In re Support of Josic (1979), 78 Ill.App.3d 347, 350, 33 Ill.Dec. 871, 397 N.E.2d 204.) Unconditional repeal of a special remedial statute without a saving clause stops all pending actions where the repeal finds them. (371 Ill. 367, 373, 21 N.E.2d 318; Gust v. Village of Skokie (1984), 125 Ill.App.3d 102, 107-08, 80 Ill.Dec. 584, 465 N.E.2d 696.) A court of review must decide pending cases based on the law which exists at the time the decision is rendered. Lincoln Community High School District No. 404 v. Elkhart Community High School District No. 406 (1953), 414 Ill. 466, 468, 111 N.E.2d 532; Wimmer v. Koenigseder (1985), 108 Ill.2d 435, 92 Ill.Dec. 233, 484 N.E.2d 1088; Ruth v. Benvenutti (1983), 114 Ill.App.3d 404, 70 Ill.Dec. 335, 449 N.E.2d 209; Sagittarius, Inc. v. Village of Arlington Heights (1980), 90 Ill.App.3d 401, 404, 45 Ill.Dec. 757, 413 N.E.2d 90; Richardson v. Ansco, Inc. (1979), 75 Ill.App.3d 731, 31 Ill.Dec. 599, 394 N.E.2d 801; Holcomb v. Hornback (1964), 51 Ill.App.2d 84, 200 N.E.2d 745; Dillon v. Nathan (1956), 10 Ill.App.2d 289, 135 N.E.2d 136.

Actions under the Act are purely statutory in nature. (Hopkins v. Powers (1985), 136 Ill.App.3d 501, 504, 91 Ill.Dec. 291, 483 N.E.2d 637; Fourt v. DeLazzer (1952), 348 Ill.App. 191, 195, 108 N.E.2d 599.) Therefore, a prospective plaintiff would have no vested right in that remedy, but "a mere expectation based upon anticipated continuance of the existing law." (People ex rel Eitel v. Lindheimer (1939), 371 Ill. 367, 373, 21 N.E.2d 318.) In Orlicki v. McCarthy (1954) 4 Ill.2d 342, 122 N.E.2d 513, plaintiff's husband was killed while riding with an intoxicated driver. At the time, dramshop actions were subject to the five-year statute of limitations. On August 10, 1949, the legislature amended the Dramshop Act to provide that every action thereunder must be instituted within two years of the date the cause of action accrued....