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08/10/87 Ruby M. Bradford, Adm'r of v. Sergio Soto Et Al.

August 10, 1987

BRADFORD, DECEASED, PLAINTIFF-APPELLANT

v.

SERGIO SOTO ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

RUBY M. BRADFORD, Adm'r of the Estate of Carlton E.

512 N.E.2d 765, 159 Ill. App. 3d 668, 111 Ill. Dec. 376 1987.IL.1148

Appeal from the Circuit Court of Du Page County; the Hon. Robert D. McLaren, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. LINDBERG, P.J., and NASH, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

This is an appeal from the dismissal of Dramshop Act counts against defendants.

Plaintiff's decedent, Carlton Bradford, was killed on July 28, 1984, when a vehicle driven by defendant Sergio Soto crossed the center line and collided head-on with Bradford's vehicle. Plaintiff filed her initial complaint on December 27, 1984, naming Sergio Soto (Soto) and Jorge A. Soto, the owner of the vehicle, as defendants. On February 22, 1985, Soto was served, through counsel, with a notice to take a discovery deposition. Soto's counsel advised plaintiff's counsel that due to pending criminal charges against Soto, Soto would refuse to answer many questions at the deposition in reliance on his rights under the fifth amendment to the United States Constitution. Plaintiff thereafter filed a motion to require Soto to appear for his deposition. After a hearing on the motion, the trial court ordered Soto to appear for his deposition with inquiry to be limited to the times, places, and circumstances under which Soto had purchased and consumed alcoholic beverages. At the scheduled deposition, Soto refused to answer questions in reliance on his fifth amendment right to not incriminate himself. Plaintiff again filed a motion for an order requiring Soto to answer questions. The trial court denied this motion after a hearing.

On July 26, 1985, plaintiff filed her amended complaint in which she named as additional defendants "John Doe and XYZ Corporation" of unknown locations and stated allegations for a cause of action under the Dramshop Act (Ill. Rev. Stat. 1985, ch. 43, par. 135). After the criminal cases against Sergio Soto were concluded, he named the locations where he had purchased and consumed alcohol. On June 30, 1986, plaintiff filed her second amended complaint in which she named the additional defendants, John D. Poole and Susan Poole, individually and d/b/a New Earth, Inc.; Guy's Steakhouse, Ltd.; and Donald G. Swan, individually and d/b/a Nachos. These defendants moved to dismiss the counts against them on the ground that the action was not commenced prior to July 28, 1985, as required by the Dramshop Act (Ill. Rev. Stat. 1985, ch. 43, par. 135). After a hearing, the trial court, on September 12, 1986, granted defendants' motions and dismissed counts III, IV, and VI. In its order, the trial court stated that "[there] is no just reason

to delay enforcement or appeal of this order." Plaintiff filed a motion for a rehearing on defendants' motions to dismiss. After argument, the motion for rehearing was denied on September 24, 1986. Plaintiff then filed a notice of appeal on October 21, 1986. We affirm.

Defendants contend that the appeal was not timely filed. Defendants argue that a final judgment order dismissing the counts against them was entered on September 12, 1986, and was made final and appealable pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). Defendants argue that to be timely, a notice of appeal of a Rule 304 order must be filed within 30 days of entry of the order. Therefore, defendants argue that the notice of appeal in this case was not timely because it was not filed within 30 days of the Rule 304 order. In response, plaintiff contends that, under Supreme Court Rule 303(a) (107 Ill. 2d R. 303(a)), her post-trial motion tolled the period in which to file a notice of appeal. We agree.

Rule 304(a) states:

"If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. Such a finding may be made at the time of the entry of the judgment or thereafter on the court's own motion or on motion of any party. The time for filing the notice of appeal shall run from the entry of the required finding. In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or ...


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