Ditsworth v. Kankakee Terrace Partnership

No. 3 97 1014
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1998

RICHARD DITSWORTH, as Special ) Appeal from the Circuit Court
Administrator of the Estate ) of the 21st Judicial Circuit
of WAYNE DITSWORTH, Deceased, ) Kankakee County, Illinois
)
Plaintiff-Appellee, )
)
v. ) No. 97 L 33
)
KANKAKEE TERRACE PARTNERSHIP, )
d/b/a KANKAKEE TERRACE, )
MORRIS ESFORMES, ARNOLD )
GASSEL, BERNARD COHEN, and )
MAN LEE, M.D., ) Honorable
) Fred S. Carr, Jr.
Defendants-Appellants. ) Judge, Presiding.
)
_________________________________________________________________

JUSTICE LYTTON delivered the opinion of the court:
_________________________________________________________________
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the legislature had repealed the treble damages before the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that provision of the Act had been repealed effective July 21,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 continuation of a law because the legislature
may amend a statute at its discretion. Armstead, 171 Ill. 2d at
291, 664 N.E.2d at 40.
Armstead held that the plaintiff had no vested right to
register its storage tanks under the law because it had not
satisfied the statutory prerequisites for registration before the
statute was amended. In the absence of a vested right, the amended
statute applied because the plaintiff had no reasonable expectation
of reimbursement. Armstead, 171 Ill. 2d at 293, 664 N.E.2d at 41.
Applying these principles, White and Dardeen found no vested right
to treble damages under the Act.
In contrast, the court in Weimann v. Meadow Manor, Inc., 285
Ill. App. 3d 455, 458, 674 N.E.2d 143, 145 (5th Dist. 1996),
analyzed Armstead and concluded that retroactive application
removed or impaired the plaintiff's vested right to pursue a cause
of action under the Act. In Hernandez v. Woodbridge Nursing Home,
287 Ill. App. 3d 641, 678 N.E.2d 788 (1st Dist. 1997), the court
agreed and added that the amendment constituted a substantive
change in the law because it altered the showing required to
receive punitive damages from simple negligence to willful and
wanton conduct. Because this change imposed a new disability on
plaintiffs concerning a past transaction, it was substantive in
nature and could only be applied prospectively. Hernandez, 287
Ill. App. 3d at 645-46, 678 N.E.2d at 791-92.
We disagree with Weimann and Hernandez. Although the
amendment eliminates punitive damages for such violations, it does
not bar the cause of action. A plaintiff may still sue for
violations of the Act. Retroactive restrictions on the
availability of remedies are permissible as long as they do not
"work a deprivation of the underlying substantive right." White,
___ Ill. App. 3d at ___, 692 N.E.2d at 1367. Thus, the effect of
the amendment is remedial.
Furthermore, in Armstead, the court found that the plaintiff
did not have a vested right to register its storage tanks because
"the change in the statute did not create a new obligation or duty
with respect to a past transaction." (Emphasis added.) Armstead,
171 Ill. 2d at 291, 664 N.E.2d at 40. Because the plaintiff was in
the process of registering the tanks when the amendment was
enacted, no "past transaction" was implicated.
In this case, Ditsworth had not even begun to enforce his
rights under the Act by filing a complaint when the amendment was
enacted.[fn1] His subsequent filing of a complaint does not
constitute a "past transaction" under Armstead. Ditsworth did not
have a reasonable expectation of being awarded treble damages prior
to filing a complaint under the Act. Without a reasonable
expectation of obtaining a particular form of relief, he can have
no vested right in seeking treble damages. See Armstead, 171 Ill. 2d at 293, 664 N.E.2d at 41.
Because the amendment had no retroactive impact on a vested
right, we answer the certified question in the positive: the
amended section of the Act applies to causes of action accruing
before July 21, 1995, and actions filed after July 21, 1995.

CONCLUSION

The certified question of the circuit court of Kankakee County
is answered, and the cause is remanded for further proceedings
consistent with this opinion.
Certified question answered.
HOMER, P.J., concurs; SLATER, J., specially concurs.
JUSTICE SLATER, specially concurring:
I agree with the result reached in this case, but I write
separately to clarify one aspect of the decision. The concept of
a "vested right" is, as the Armstead court noted, "not capable of
precise definition." Armstead, 171 Ill. 2d at 290, 664 N.E.2d at
40. In finding that plaintiff had no vested right to treble
damages in this case, the court in part relies on the fact that
plaintiff did not file his complaint prior to the effective date of
the amendment. To the extent that this implies that plaintiff
would have had a vested right to treble damages if he had filed
earlier, I disagree. In my opinion, a plaintiff could never have
a vested right to treble damages. Such damages are unrelated to a
plaintiff's right to compensation for his injuries and are punitive
in nature. They are purely a matter of legislative grace,
revocable at will. See Armstead, 171 Ill. 2d at 291, 664 N.E.2d at
40 (there is no vested right in the mere continuance of a law; the
legislature has an ongoing right to amend a statute). In other
words, a person cannot have a "vested right" to a legislatively
created windfall. I concur.
[fn1] Because the certified question in this case concerns
only causes of action accruing before July 21, 1995, and filed
after this date, we limit our discussion to this factual context.
Any discussion in this opinion of the amendment's effect on
complaints filed before July 21, 1995, would be dicta.