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Maras v. Bertholdt





Appeal from the Circuit Court of Lake County; the Hon. Harry D. Strouse, Judge, presiding.


Plaintiff, A. Thomas Maras, administrator of the estate of Laura Maras, appeals from an order of the circuit court of Lake County partially granting the summary judgment motion of defendants-appellees Gilbert McCormick, Sr., and Gilbert McCormick, Jr., d/b/a McCormick's Restaurant and Lounge, and from the subsequent order dismissing his dramshop action against defendants for the fatal injuries sustained by decedent. As bases for this appeal, plaintiff contends that the trial court: (1) erred in determining as a matter of law that decedent's parents were unable to recover for injuries to means of support and loss of services rendered by decedent; (2) improperly considered an affidavit supporting a summary judgment motion which contained hearsay; (3) erred in precluding plaintiff from maintaining an action for decedent's personal injuries and property damage; and (4) improperly concluded that the dramshop action did not survive the death of the decedent. We affirm the trial court's entry of summary judgment in favor of defendants, but reverse its order dismissing plaintiff's dramshop action for pain and suffering and remand for reinstatement of that portion of plaintiff's complaint.

On September 30, 1979, decedent was killed in an automobile accident involving a vehicle driven by defendant Kevin Autry and a vehicle owned by defendant Claus Bertholdt. Prior to the accident, Bertholdt and decedent Maras had been at McCormick's Restaurant and Lounge in Lake Forest, Illinois. The parties disputed in the trial court whether Bertholdt or Maras drove the car after leaving the tavern.

As a result of Maras' death, plaintiff filed a complaint against Autry, Bertholdt, and the McCormicks. Count V of the complaint sought relief from defendants Gilbert McCormick, Sr., and Gilbert McCormick, Jr., d/b/a McCormick's Restaurant and Lounge, for the sale of alcoholic beverages to Bertholdt causing his intoxication, which thereafter resulted in decedent's death. Count V further alleged a right of recovery for decedent's personal injuries, for property damages incurred (medical and funeral expenses), and for the parents' loss of the means of support of their daughter. After considering memoranda filed by the parties, the trial court on August 26, 1981, partially granted defendants' motion for summary judgment, ruling as a matter of law that decedent did not render any actual support to plaintiffs and that funeral and medical expenses were not recoverable because decedent was an adult and therefore, the family expenses act (Ill. Rev. Stat. 1981, ch. 40, par. 1015) was inapplicable.

On the day of trial, defendants filed a motion to dismiss the remaining portion of count V, alleging that no recovery for personal injury of decedent could be obtained because the action did not survive decedent's death. The trial court granted defendants' motion.

During the course of the trial, plaintiff entered into a settlement agreement for $60,000 with Autry and the trial court dismissed the survival and wrongful death action against Autry. At the conclusion of trial, but prior to submitting the case to the jury, the trial court granted Bertholdt's motion for a directed verdict on the survival action. Plaintiff proceeded to verdict against Bertholdt in the wrongful death count and was awarded $100,000, and the trial court entered judgment on that verdict.

On petition of Bertholdt, the trial court ruled plaintiff could not allocate any portion of the $60,000 settlement with Autry to the survival action and thus, Bertholdt was entitled to set off against the $100,000 verdict the entire $60,000 paid by Autry for a covenant not to sue. On November 10, 1982, a satisfaction of judgment was filed indicating Bertholdt's tender of $40,468.50 in acceptance and release of judgment by plaintiff. On September 27, 1982, plaintiff filed a motion for a new trial which was denied on November 3, 1982. Plaintiff filed a notice of appeal on November 30, 1982.

The initial question concerns defendants' motion filed in February 1983 seeking dismissal of this appeal. Defendants contend plaintiff failed to file his notice of appeal within 30 days of the court's order granting defendants' motion to dismiss count V of plaintiff's complaint. Plaintiff responds that he received no notice of the August 23, 1982, written order and therefore, his notice of appeal filed subsequent to the close of trial properly raises the dismissal of count V before this court.

We are unpersuaded by defendants' contention that plaintiff's appeal should be dismissed. The disputed order was entered by the court on August 23, 1982, dismissing the remaining portion of count V of plaintiff's complaint seeking recovery for decedent's pain and suffering prior to her death. Defendants presented the motion to dismiss on August 23, 1982, immediately prior to trial, which the court orally granted in the presence of attorneys for both plaintiff and defendants. The oral order did not contain the finding that there existed no just reason to delay enforcement or appeal. The trial court did not specify whether a written order should be drafted incorporating the terms of his oral order. The record, however, contains a written order filed August 23, 1982, granting defendants' motion to dismiss but also including the Rule 304(a) language (73 Ill.2d R. 304(a)). *fn1 Defendant filed a motion for a new trial on September 27, 1982, more than 30 days after entry of the August 23 written order, and the trial court specifically denied on November 3, 1982, plaintiff's post-trial request for reinstatement of count V because his motion "was not filed within thirty (30) days of a final and appealable order disposing of count V in its entirety."

Based upon these facts, defendants filed a motion to dismiss plaintiff's appeal regarding count V which this court initially granted. After plaintiff filed objections to the dismissal order, this court ordered that the motion to dismiss be heard with this case. Attached to plaintiff's objections is an affidavit of his attorney, William Fitzpatrick, wherein Fitzpatrick states "[h]e was never served with a copy of the attached order dated August 23, 1982, and was never aware of its existence until he received a copy of it attached to Defendant McCormick's Motion to Dismiss this Appeal." Fitzpatrick further stated the only dismissal order of which he was aware was that entered orally on August 23, 1982, which did not contain Rule 304(a) language.

Defendants' attorney, Markham M. Jeep, filed an affidavit attached to the motion to dismiss the appeal in which he states only that the papers attached to the motion to dismiss the appeal are true and correct copies. Since Jeep's affidavit does not contradict any of the statements in plaintiff's affidavit, we accept as true that plaintiff did not receive notice of the August 23, 1982, written order which included the critical Rule 304(a) language, and did not become aware of the existence of that order at least until the trial court denied his post-trial motion in November 1982.

• 1 While Supreme Court Rule 271 (73 Ill.2d R. 271) places the responsibility on the successful movant for drafting a written order, here the written order contains the Rule 304(a) language which was not present in the court's oral order. The addition of the Rule 304(a) language was a substantive change in the trial court's oral order amounting to the equivalent of a new order. Prior to entry of a new order, a party must give notice that a motion will be presented to the court. (Cf. Vlahakis v. Parker (1971), 3 Ill. App.3d 126, 278 N.E.2d 523 (abstract of opinion).) Absent such notice, the order is void. Because plaintiff did not receive notice of the written August 23, 1982, order containing the Rule 304(a) language, that order was void and thus was not capable of triggering the 30-day time period. The oral order of August 23, 1982, similarly did not trigger the appeal, because, even though final, the order did not contain the requisite 304(a) language and thus was not appealable. Since neither order initiated the 30-day period, plaintiff's notice of appeal filed within 30 days of the trial court's denial of his motion for a new trial effectively conferred jurisdiction on this court.

• 2 Defendants also assert that this appeal should be dismissed because plaintiff proceeded to verdict on claims based in the wrongful death action (count III) and because plaintiff executed a release of satisfaction of judgment in favor of co-defendant Bertholdt. Therefore, defendants argue, the issues raised by plaintiff's appeal are moot. However, defendants cite no authority for their contention, and thus, this court can consider it waived. (See Wilson v. Continental Body Corp. (1981), 93 Ill. App.3d 966, 418 N.E.2d 56; 73 Ill.2d R. 341(e).) While defendants in their motion to dismiss appeal assert that they joined in and adopted the arguments and authorities proposed by Bertholdt in his December 14, 1982, motion, this statement cannot avoid operation of the waiver rule. For even if such an incorporation by reference is effective, defendant failed to cite this court in his motion to the portion of the record where this document can be found. Absent proper citation to the record, defendant has waived the mootness argument. See 87 Ill.2d R. 341(e)(7).

• 3 Even if the merits of defendants' mootness contention are addressed, the cases cited by plaintiff are persuasive support for the conclusion that this appeal is not moot. In Slone v. Morton (1963), 39 Ill. App.2d 495, 188 N.E.2d 493, the court concluded that causes of action predicated on the Wrongful Death Act and the Dramshop Act were separate and distinct and thus, payment by certain defendants under the wrongful death count did not preclude recovery on the dramshop count. Similarly, this court in Kurth v. Amee, Inc. (1972), 3 Ill. App.3d 506, 278 N.E.2d 162, held that a plaintiff's execution of a covenant not to sue the allegedly drunk driver did not preclude her from suing the taverns under the Dramshop Act. As the Kurth court stated: "It is not realistic to conclude that the amount received for a covenant not to sue one of the several tort-feasors can be equated with ...

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