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03/11/96 DURLYNNE JACKSON v. JOSE MORENO

March 11, 1996

DURLYNNE JACKSON, INDIVIDUALLY AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF DONALD C. JACKSON, DECEASED; DURLYNNE JACKSON AND DONNA JACKSON, PLAINTIFFS-APPELLANTS,
v.
JOSE MORENO, ET AL., SOUTHLAND CORPORATION AND PARKVIEW PLAZA ASSOCIATES, INC., DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE KENNETH GILLIS, JUDGE PRESIDING.

The Honorable Justice Wolfson delivered the opinion of the court: Campbell, P.j. and Braden, J., concur.

The opinion of the court was delivered by: Wolfson

JUSTICE WOLFSON delivered the opinion of the court:

This case requires us to explore the reach of the Dram Shop Act.

BACKGROUND

On May 25, 1993, Jose Moreno purchased beer at a 7-Eleven Store located on West Irving Park Road in Chicago. The 7-Eleven Store was operated by Amjad Chaudhri in accord with a franchise agreement with Southland Corporation (Southland). Under the franchise agreement, Southland provided Chaudhri with a license and lease for the premises, training, and ongoing services.

The 7-Eleven Store was located within a small shopping complex, which was owned by Parkview Plaza Associates, Inc. (Parkview). Parkview leased the premises to Southland. In the lease, Southland was assured that its leased premises would be the only location within the shopping center permitted to sell "packaged fluid milk, packaged bread products, or delicatessen type food products for consumption off the premises, or packaged alcoholic beverages, or tobacco products."

Plaintiffs Durlynne Jackson, individually and as Special Administrator of the Estate of Donald C. Jackson, deceased, and Donna Jackson brought suit against Chaudhri (who is not a party to this appeal), Southland, and Parkview, under the Illinois Liquor Control Act (Act), commonly referred to as the Dram Shop Act. Plaintiffs alleged that Southland and Parkview "owned" or "permitted the occupation of the premises" where liquor was sold to defendant Moreno, who became intoxicated and caused a motor vehicle accident resulting in the death of plaintiffs' deceased, as well as other injury and damages. See 235 ILCS 5/6-21 (West 1992).

Southland and Parkview both moved for dismissal under section 2-619 of the Civil Practice Law, claiming that they were not "owners" or "permitters" within the meaning of the Act. The trial court granted the motions and made its rulings final and appealable by adding Rule 304(a) language. We reverse the trial court's orders for reasons that follow.

The trial court granted defendants' motions for dismissal under section 2-619. As stated in Draper v. Frontier Insurance Co., 265 Ill. App. 3d 739, 638 N.E.2d 1176, 203 Ill. Dec. 50 (1994):

"Section 2-619 provides a means to dispose of issues of law or of easily proved issues of fact. (Citation.) A section 2-619 motion admits all well-pleaded facts in the complaint but does not admit conclusions of law or conclusions of fact unsupported by specific allegations. (Citation.) The trial court should grant the motion only if, after construing the documents supporting the motion in the light most favorable to the nonmovant, it finds no disputed issues of fact. The trial court may not weigh the evidence or decide controverted material issues of fact."

We must determine whether the trial court erred when it held, as a matter of law, that Southland and Parkview were not "owners" or "permitters" within the language of the Illinois Liquor Control Act. Because the trial court issued rulings of law, we use a de novo standard in this review. S.B. Lexington, Inc. v. Near North Insurance Agency, Inc., 244 Ill. App. 3d 1023, 1030, 614 N.E.2d 234, 185 Ill. Dec. 100 (1993).

Whether the trial court erred in dismissing Parkview

Section 6-21 of the Illinois Liquor Control Act (235 ILCS 5/6-21 (West 1992)) ...


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