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Ditsworth v. Kankakee Terrace Partnership

September 08, 1998

RICHARD DITSWORTH, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF WAYNE DITSWORTH, DECEASED, PLAINTIFF-APPELLEE,
v.
KANKAKEE TERRACE PARTNERSHIP, D/B/A KANKAKEE TERRACE, MORRIS ESFORMES, ARNOLD GASSEL, BERNARD COHEN, AND MAN LEE, M.D., DEFENDANTS-APPELLANTS.



The opinion of the court was delivered by: Justice Lytton

Appeal from the Circuit Court of the 21st Judicial Circuit Kankakee County, Illinois

No. 97-L-33

Honorable Fred S. Carr, Jr. Judge, Presiding.

The plaintiff filed a complaint seeking treble damages for violations of the Nursing Home Care Act (Act) (210 ILCS 45/3-602 (West 1994)). The defendants moved to dismiss this count because the legislature had repealed the treble damages before the complaint was filed. The trial court denied the motion and certified a question to this court regarding the retroactive application of the amendment to the Act.

FACTS

On September 5, 1996, Richard Ditsworth, as the special administrator of the estate of Wayne Ditsworth, filed a complaint against the Kankakee Terrace Partnership, d/b/a Kankakee Terrace, and Morris Esformes, Arnold Gassel, Bernard Cohen (together, Kankakee Terrace) and Man Lee, M.D. In count I of the complaint, Ditsworth sought treble damages for Kankakee Terrace's alleged violations of the Act between August 2, 1994, and September 8, 1994.

Kankakee Terrace filed a motion to dismiss this count because that provision of the Act had been repealed effective July 21, 1995. See 210 ILCS 45/3-602 (West Supp. 1995). After hearing oral arguments, the trial court denied the motion and noted the absence of case law on the issue. Kankakee Terrace filed a motion to certify a question to this court pursuant to Supreme Court Rule 308(a). 155 Ill. 2d R. 308. The trial court granted the motion and certified the following question of law for interlocutory review:

"Does the amended section 3-602 of the Illinois Nursing Home Care Act apply to causes of action accruing before July 21, 1995 and actions filed after July 21, 1995?" (Emphasis in original.) This court granted leave to appeal.

DISCUSSION

Kankakee Terrace argues that the amendment repealing the treble damages provision of the Act applies to causes of action accruing prior to the effective date of the repeal but filed after that date; it contends that no vested right to recovery exists until after a complaint has been filed.

On appeal, questions of law are reviewed de novo. See Lucas v. Lakin, 175 Ill. 2d 166, 171, 676 N.E.2d 637, 640 (1997). A review of the applicable case law reveals that our appellate courts are evenly divided on this issue.

In White v. Sunrise Healthcare Corp., ___ Ill. App. 3d ___, 692 N.E.2d 1363 (2nd Dist. March 31, 1998), and Dardeen v. Heartland Manor, Inc., No. 4-98-0006 (4th Dist. June 29, 1998), the relevant facts are identical to those in the instant appeal. In those cases, a complaint was filed against a residential nursing home seeking treble damages after the effective date of the amendment repealing this provision (see 210 ILCS 45/3-602 (West Supp. 1995)). Both courts held that the amendment applied retroactively to any complaint filed after the effective date, even though the underlying cause of action accrued before that date.

White and Dardeen relied on First of America Trust Co. v. Armstead, 171 Ill. 2d 282, 289-91, 664 N.E.2d 36, 39-40 (1996), in which our supreme court discussed the link between the nature of the rights affected and the retroactivity of the legislation. In Armstead, the plaintiff was in the process of appealing the denial of its application to register its underground gasoline storage tanks pursuant to the applicable statute when the statute was amended, precluding their registration. Armstead, 171 Ill. 2d at 285-86, 664 N.E.2d at 38-39.

The court stated that the law in existence at the time of the appeal should be applied unless it infringed on a vested right. The court stated that, while a vested right cannot be defined with precision, it is an unconditional right that has become so perfected as to constitute a property interest. A mere interest or expectation rises to this level only if it is sufficiently perfected or the change in the law is substantive in nature. Armstead, 171 Ill. 2d at 289-91, 664 N.E.2d at 39-40. There is no vested right in the ...


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