Weimann v. Meadow Manor, Inc.

                               NO. 5-96-0182

                                  IN THE

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

JESSIE WEIMANN, as Next Friend and   )  Appeal from the
Guardian for the Person and          )  Circuit Court of
Estate of ROSALIE WEIMANN,           )  Christian County.
                                     )
     Plaintiff-Appellant,            )
                                     )
v.                                   )  No. 95-L-27
                                     )
MEADOW MANOR, INC.,                  )  Honorable
                                     )  Robert Davison,
     Defendant-Appellee.             )  Judge, presiding.
_________________________________________________________________

     JUSTICE GOLDENHERSH delivered the opinion of the court:
     Plaintiff, Jessie O. Weimann, guardian of the person and
estate of Rosalie Weimann, appeals from an order entered by the
circuit court of Christian County striking plaintiff's prayer for
treble damages for injuries Rosalie Weimann allegedly sustained
while a resident at Meadow Manor, the facility of defendant, Meadow
Manor, Inc.  Plaintiff seeks treble damages under section 3-602 of
the Nursing Home Care Act (the Act) (210 ILCS 45/3-602 (West 1994))
as it existed on March 6, 1995, when plaintiff filed his complaint, 
prior to the amendment of section 3-602 by Public Act 89-197,
effective July 21, 1995 (see 210 ILCS 45/3-602 (West Supp. 1995)). 
The circuit court entered an order certifying the question of
treble damages for interlocutory appeal to this court.  On appeal,
the sole issue presented for our consideration is whether the
amendment of section 3-602 by Public Act 89-197 shall be applied
retroactively to actions occurring prior to July 21, 1995.  We hold
that the circuit court erred in applying the amended section 3-602
of Public Act 89-197 retroactively.
                                     I
     Count I of plaintiff's two-count complaint is premised upon
liability under the Act and seeks treble damages and attorney fees. 
The complaint alleges that Rosalie Weimann, plaintiff's wife, was
raped repeatedly by a licensed practical nurse employed by
defendant and further alleges that defendant was warned repeatedly
of the nurse's conduct and failed to prevent further sexual acts by
the nurse against Rosalie Weimann.  Count II alleges that plain-
tiff's injuries were caused by defendant's negligence and seeks
compensatory and punitive damages.
     At the time the alleged rapes occurred, from March 1993 
through January 1995, and when plaintiff filed his complaint on
March 6, 1995, section 3-602 of the Act provided:
          " 3-602.  The licensee shall pay 3 times the actual
     damages, or $500, whichever is greater, and costs and at-
     torney's fees to a facility resident whose rights, as
     specified in Part 1 of Article II of this Act, are violated." 
     210 ILCS 45/3-602 (West 1994).
     The General Assembly passed Public Act 89-197 while plain-
tiff's complaint was pending.  Public Act 89-197, referred to as
the "Health Care Worker Background Check Act," amended section 3-
602 of the Act by repealing the treble damages provision.  Section
3-602 now reads as follows:
          " 3-602.  The licensee shall pay the actual damages and
     costs and attorney's fees to a facility resident whose rights,
     as specified in Part 1 of Article II of this Act, are violat-
     ed."  210 ILCS 45/3-602 (West Supp. 1995).
     Upon enactment of Public Act 89-197, defendant moved to strike
plaintiff's request for treble damages.  On February 27, 1996, the
trial court entered an interlocutory order granting defendant's
motion to strike treble damages and, pursuant to Supreme Court Rule
308 (155 Ill. 2d R. 308), certifying the following question of law:
     "Shall treble damages be stricken from actions brought under
     the Illinois Nursing Home Act, 210 ILCS 45/3-602, where the
     alleged facts supporting said actions occurred prior to the
     enactment of Public Act 89-0197 on July 21, 1995."
     On April 4, 1996, we accepted jurisdiction to answer this
question pursuant to Supreme Court Rule 308.
                                    II
     Plaintiff contends that it was error for the trial court to
apply Public Act 89-197 retroactively to strike treble damages from
plaintiff's complaint.  Plaintiff maintains that in light of our
supreme court's decision in First of America Trust Co. v. Armstead,
171 Ill. 2d 282, 664 N.E.2d 36 (1996), Public Act 89-197 should not
be applied retroactively because the amendments impose a new duty
on plaintiff and create a new disability with respect to transac-
tions and considerations already passed.  We agree for the reasons
set out below.
     Generally, a reviewing court is to apply the law as it exists
at the time of the appeal unless doing so interferes with a vested
right.  First of America Trust Co., 171 Ill. 2d  at 289, 664 N.E.2d 
at 40.  "Where an amendment does not reach back and interfere with
vested rights, there is no truly retroactive impact."  First of
America Trust Co., 171 Ill. 2d  at 289, 664 N.E.2d  at 40.  An
amendment has a retroactive impact when it "`"takes away or impairs
vested rights acquired under existing laws, or creates a new
obligation, imposes a new duty, or attaches a new disability in
respect of transactions or considerations already past."'"  First
of America Trust Co., 171 Ill. 2d  at 290, 664 N.E.2d  at 40 (quoting
United States Steel Credit Union v. Knight, 32 Ill. 2d 138, 142,
204 N.E.2d 4, 6 (1965) (quoting 82 C.J.S. Statutes 412 (1953))). 
There is no retroactive impact where vested rights are not yet
perfected or the amendment is procedural in nature.  First of
America Trust Co., 171 Ill. 2d  at 290, 664 N.E.2d  at 40.  Acknowl-
edging that "whether a particular expectation rises to the level of
a vested right is not capable of precise definition," our supreme
court has stated:
     "[A] vested right [is] an expectation that is so far perfected
     that it cannot be taken away by legislation.  Sanelli v.
     Glenview State Bank, 108 Ill. 2d 1, 20, 483 N.E.2d 226 (1985). 
     Although not capable of precise definition, a vested right is
     a complete and unconditional demand or exemption that may be
     equated with a property interest.  See, e.g., Sepmeyer v.
     Holman, 162 Ill. 2d 249, 642 N.E.2d 1242 (1994) (finding that
     expiration of a statute of limitations creates a vested right
     that is beyond legislative interference); [City of Chicago v.]
     Collin, 302 Ill. [270,] 275, 134 N.E. 751 [(1922)] (holding
     that owner of land sought to be taken for public use has a
     vested right to compensation pursuant to law in effect at time
     of filing of petition, because filing of petition creates `an
     immediate, fixed and determinate right to any compensation')." 
     First of America Trust Co., 171 Ill. 2d  at 290-91, 664 N.E.2d 
     at 40.
     Retroactive application of Public Act 89-197 to the existing
controversy would take away or impair plaintiff's vested rights
acquired under the Act prior to the enactment of Public Act 89-197
amending section 3-602.  The Act, inter alia, gives a nursing home
resident a cause of action against nursing home owners and
operators for violations of the residents' rights under the Act. 
210 ILCS 45/3-601 (West 1994).  Before Public Act 89-197 became
law, section 3-602 of the Act provided that the operator of the
nursing home facility "shall pay 3 times the actual damages, or
$500, whichever is greater, and costs and attorney's fees to a
facility resident whose rights *** in Part I of Article II of the
Act, are violated."  210 ILCS 45/3-602 (West 1994).
     In the case at bar, the alleged wrongful acts, the repeated
rape of Rosalie Weimann by defendant's employee, the alleged
physical and psychological injuries to Rosalie Weimann, the report
of the alleged sexual acts to the proper supervisory personnel, the
alleged failure of said personnel to investigate the allegations or
to take preventative measures, and the subsequent filing of
plaintiff's complaint all occurred prior to the enactment of Public
Act 89-197.  Plaintiff's rights as set forth in Part I of Article
II of the Act, to be free from abuse or neglect by a facility
employee, as well as the Act's general requirement that the nursing
home facility not create "a condition or occurrence relating to the
operation and maintenance of a facility directly threatening to the
health, safety or welfare of a resident" (210 ILCS 45/1-130, 2-107
(West 1994)), obviously would be violated by the events listed
above.  Plaintiff satisfied all the statutory requirements of
section 3-602 as it existed.  Consequently, plaintiff had a right
to the recovery of treble damages as provided in the statute if the
alleged violations were proved at trial.  Although whether a
particular expectation rises to the level of a vested right cannot
be precisely defined, under the circumstances presented here, 
plaintiff's right to recover treble damages has been perfected and
rises to the level of a vested right.  See Harraz v. Snyder, 283
Ill. App. 3d 254, 669 N.E.2d 911 (1996).  Accordingly, we conclude
that section 3-602 as amended by Public Act 89-197 retroactively
impacts plaintiff's vested rights and may not be retroactively
applied to strike plaintiff's prayer for treble damages.
     Because of our foregoing conclusion, we need not address the
remaining point raised by plaintiff concerning the retroactive
application of new duties imposed on nursing home facilities by
Public Act 89-197.
     For the foregoing reasons, the order of the circuit court of
Christian County is reversed, and the cause is remanded for further
proceedings consistent with this opinion.

     Reversed and remanded.

     WELCH and CHAPMAN, JJ., concur.                                      NO. 5-96-0182
                                     IN THE
                          APPELLATE COURT OF ILLINOIS
                                 FIFTH DISTRICT
___________________________________________________________________________
JESSIE WEIMANN, as Next Friend and   )  Appeal from the
Guardian for the Person and          )  Circuit Court of
Estate of ROSALIE WEIMANN,           )  Christian County.
                                     )
     Plaintiff-Appellant,            )
                                     )
v.                                   )  No. 95-L-27
                                     )
MEADOW MANOR, INC.,                  )  Honorable
                                     )  Robert Davison,
     Defendant-Appellee.             )  Judge, presiding.
___________________________________________________________________________

Opinion Filed:                 December 12, 1996
___________________________________________________________________________

Justices:      Honorable Richard P. Goldenhersh, J.
                         
               Honorable Thomas M. Welch, J., and
               Honorable Charles W. Chapman, J.,
               Concur
___________________________________________________________________________
                         
Attorneys      Thomas Q. Keefe, Jr., P.C., 6 Executive Woods Ct., 
for            Belleville, IL 62221; Louis A. DePaepe, P.C., 104 E.
Appellant      Market, P.O. Box 77, Taylorville, IL  62568
___________________________________________________________________________

Attorneys      Murvel Pretorius, Jr., Julie A. Ward, Michael J. Holt, 
for            Quinn, Johnston, Henderson & Pretorius, 227 N.E. Jefferson,
Appellee       Peoria, IL 61602
___________________________________________________________________________