Randall v. Wal-Mart Stores, Inc.
Annotate this Case
NO. 4-96-0013
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
RONALD E. RANDALL and MARY KAY RANDALL, ) Appeal from
Plaintiffs-Appellees, ) Circuit Court of
v. ) Champaign County
WAL-MART STORES, INC., ) No. 92L79
Defendant-Appellant, )
and )
STAHLY TRUCK CITY, INC., STAHLY TRUCKS, )
INC., MCLEAN COUNTY TRUCK CO., QUALITY )
TRUCK AND EQUIPMENT CO., AZZARELLI )
BUILDERS, INC., CHAMPAIGN ASPHALT CO., )
and APCORN CORPORATION, d/b/a ) Honorable
UNIVERSITY ASPHALT CO., ) John G. Townsend,
Defendants. ) Judge Presiding.
_________________________________________________________________
JUSTICE McCULLOUGH delivered the opinion of the court:
Defendant Wal-Mart Stores, Inc. (Wal-Mart), appeals from
a judgment entered in the circuit court of Champaign County in
favor of plaintiffs Ronald and Mary Randall. The jury awarded
$1,075,000 to Ronald and $100,000 to his wife Mary. After taking
into account setoffs for prior settlements, judgment was entered on
the jury verdicts against defendant in the amount of $649,981.85
for Ronald and $0 for Mary. This case involved recovery under the
Structural Work Act (Act) (Ill. Rev. Stat. 1989, ch. 48, pars. 60
through 69) for injuries occurring on August 23, 1991.
The issues are whether (1) defendant was entitled to a
directed verdict at the close of plaintiffs' case in chief or at
the close of all the evidence because the evidence failed to
establish that defendant was in charge of the work and wilfully
violated the Act; (2) judgment should have been entered in
accordance with the jury's response to a special interrogatory
relating to whether defendant was in charge; and (3) defendant was
entitled to a new trial because the jury was not properly instruct-
ed regarding the issues and burden of proof, particularly concern-
ing the question of whether defendant was in charge. We affirm.
Shortly before oral argument in this case, defendant
filed a motion which, although entitled a "Motion To Dismiss," in
effect sought vacatur of the judgment and abatement of plaintiffs'
action based on the repeal of the Act effective February 14, 1995
(Pub. Act 89-2, eff. February 14, 1995 (1995 Ill. Laws 7)). See
People v. Zito, 237 Ill. 434, 436, 86 N.E. 1041, 1042 (1908).
Defendant correctly points out that, if the repeal effectively cuts
off defendant's right to a cause of action in this case, the
circuit court and this court no longer have jurisdiction to
entertain plaintiffs' claims. Subject-matter jurisdiction concerns
the power of the court to hear a case and to grant the relief
requested, and where the courts are exercising jurisdiction
pursuant to a statute which has no counterpart in common law or
equity, as here, the courts must proceed within the strictures of
the statute and cannot exceed their statutory authority. People ex
rel. Brzica v. Village of Lake Barrington, 268 Ill. App. 3d 420,
423, 644 N.E.2d 66, 68-69 (1994). It is never too late to raise
the question of whether the courts have subject-matter jurisdic-
tion. Geise v. Phoenix Co. of Chicago, Inc., 159 Ill. 2d 507, 515,
639 N.E.2d 1273, 1276 (1994); Walton v. Pryor, 276 Ill. 563, 565,
115 N.E. 2, 3 (1916). Lack of subject-matter jurisdiction may be
raised for the first time on direct appeal (Muller v. Jones, 243
Ill. App. 3d 711, 712, 613 N.E.2d 271, 272 (1993)) or in a
collateral attack on the judgment (Campbell v. White, 187 Ill. App.
3d 492, 504, 543 N.E.2d 607, 615 (1989)).
Defendant's motion cites the recent decision in Scott v.
Midwest, Ltd., 933 F. Supp. 735 (C.D. Ill. 1996), as authority for
the proposition that, once the Act had been repealed, plaintiffs
are entitled to no recovery. Because the federal decision applies
rules of statutory construction as rules of law in such a way as to
defeat legislative intent rather than to give it effect, we decline
to adopt the reasoning in that decision.
The cardinal rule of statutory construction is to
ascertain and give effect to the true intent and meaning of the
legislature. State Farm Fire & Casualty Co. v. Yapejian, 152 Ill. 2d 533, 540-41, 605 N.E.2d 539, 542 (1992). The language of the
statute is the best indicator of that intent, and aids for
construing a statute will only be resorted to if the language of
the statute is not clear. Solich v. George & Anna Portes Cancer
Prevention Center of Chicago, Inc., 158 Ill. 2d 76, 81, 630 N.E.2d 820, 822, (1994).
The basic premise of the decision in Scott is that the
statute repealing the Act is not ambiguous. However, as already
noted, if the statutory language is clear and unambiguous, there is
no need to resort to aids for construction. Nevertheless, the
decision in Scott finds absence of ambiguity because the legisla-
ture is presumed to know the law in effect at the time of the
enactment. That is a rule of statutory construction to which
resort would not have to be made if the repealing statute was not
in fact ambiguous. A repealing act which does not state whether it
is to be applied retroactively or prospectively is ambiguous to
that extent.
Often the legislature does not express its intention as
to whether a new enactment is to be given effect retroactively or
prospectively. Therefore, rules of statutory construction have
been developed to assist the courts in making this determination.
For example, it is often stated that, in the absence of express
language regarding legislative intent as to whether an enactment or
an amendment is to be applied retroactively or prospectively, the
courts presume the legislature intended the enactment or amendment
to operate prospectively and not retroactively. Schantz v. Hodge-
VonDeBur, 113 Ill. App. 3d 950, 952-53, 447 N.E.2d 1355, 1357
(1983); see also Dunn v. Illinois Central Gulf R.R. Co., 215 Ill.
App. 3d 190, 195, 574 N.E.2d 902, 905 (1991). Although statutes
are not generally construed so as to be applied retroactively,
remedial or procedural statutes may be applied retroactively.
Hogan v. Bleeker, 29 Ill. 2d 181, 184, 193 N.E.2d 844, 847 (1963).
However, even remedial or procedural statutes will not be applied
retroactively if to do so would result in deprivation of a vested
right. Delbecarro v. Cirignani, 261 Ill. App. 3d 644, 648, 633 N.E.2d 981, 983 (1994).
In this case, the issue is presented by motion and is not
fully briefed. Nevertheless, even assuming the act was remedial in
nature and that plaintiffs had no vested right (see Vance v.
Rankin, 194 Ill. 625, 629, 62 N.E. 807, 809 (1902) (a statutory
cause of action which has not been commenced, prosecuted, and
concluded is an inchoate right), we find that retroactive applica-
tion of the repeal of the Act to be inconsistent with express
legislative intent.
For repeals, the presumption is that the legislature
intended the repealing statute to be applied retroactively, unless
there is an expression of legislative intent to the contrary. The
legislature has the power to withdraw the jurisdiction of the court
over statutory causes of action by repealing the act, and the
result of a repeal given retroactive application is to leave all
such causes of action and pending suits where they are at the time
of the repeal. Hogan, 29 Ill. 2d at 185, 193 N.E.2d at 847. When
a repealing act is passed and nothing is substituted for the former
act, the former act will be construed as having no more force or
effect. City of Chicago v. Degitis, 383 Ill. 171, 175, 48 N.E.2d 930, 932 (1943). It is as if it had never been enacted in the
first place except as to proceedings passed and closed. Holcomb v.
Boynton, 151 Ill. 294, 297, 37 N.E. 1031, 1032 (1894). As a
result, if final relief has not been granted, it may not be granted
after the repeal. Shelton v. City of Chicago, 42 Ill. 2d 468, 473-
74, 248 N.E.2d 121, 123-24 (1969). This is so even if judgment has
been entered in the trial court, and the cause is pending on
appeal. Lincoln Community High School District No. 404 v. Elkhart
Community High School District No. 406, 414 Ill. 466, 468, 111 N.E.2d 532, 533-34 (1953). The appellate court must dispose of the
case based on the law in effect at the time of its decision.
Vance, 194 Ill. at 627-28, 62 N.E. at 808. One manner in which the
legislature may avoid this result is by including a savings clause
in the repealing act. See People ex rel. Eitel v. Lindheimer, 371 Ill. 367, 372-73, 21 N.E.2d 318, 321 (1939). However, the general
savings clause in the Statutory Construction Act (Ill. Rev. Stat.
1961, ch. 131, par. 4, now 5 ILCS 70/4 (West 1994)) has no applica-
tion to repeals. Shelton, 42 Ill. 2d at 474, 248 N.E.2d at 124.
There is no savings clause in the statute repealing the
Act. However, the legislature did express its intent that the
repeal not bar an action which had accrued prior to the effective
date of the repeal in a preamble to the repealing statute as
follows:
"WHEREAS, It is the intent of the General
Assembly that the repeal of the [Act] shall
operate as a bar to any action accruing on or
after the effective date of this Public Act;
and
WHEREAS, It is the intent of the General
Assembly that any action accruing under the
[Act] before the effective date of this Public
Act may be maintained in accordance with the
provisions of that Act as it existed before
its repeal by this Public Act[.]" 740 ILCS
Ann. 150/0.01 through 9, Historical & Statuto-
ry Notes, at 100 (Smith-Hurd Supp. 1996); Pub.
Act 89-2, eff. February 14, 1995 (1995 Ill.
Laws 7).
Although a preamble is not part of the act, it may be used to
clarify an ambiguous portion of an act, but not to create an
ambiguity. Triple A Services, Inc. v. Rice, 131 Ill. 2d 217, 226-
27, 545 N.E.2d 706, 709 (1989). A preamble is an important
expression of legislative intent because it accompanied the bill
through the legislative process. 2A N. Singer, Sutherland
Statutory Construction 47.04, at 146-47 (5th ed. 1992).
Although courts in other cases have construed repealing
statutes as not saving causes of action accruing before the
effective date of the repeal, defendant cites no case in which the
legislature's intention to the contrary was clearly expressed in
the preamble to the repealing statute. There is no doubt that had
this case involved a repealing statute without a savings clause and
without any expression of legislative intent concerning the
retroactive or prospective application of the statute, this court
would be bound by stare decisis to interpret it as being applied
retroactively so as to abate plaintiffs' actions. See 2A N.
Singer, Sutherland on Statutory Construction 45.15 (5th ed. 1992).
Based on the express legislative intent in the case at
bar, the statute repealing the Act is construed to apply prospec-
tively only. The defendant's motion designated "Motion To Dismiss"
is denied.
The material in this section is not to be published
pursuant to Supreme Court Rule 23. Official Reports Advance Sheet
No. 15 (July 20, 1994), R. 23, eff. July 1, 1994.
Nonpublishable material omitted under Supreme Court Rule 23.
The judgment of the circuit court of Champaign County is
affirmed.
Affirmed.
COOK, P.J., and GARMAN, J., concur.
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
RONALD E. RANDALL and MARY KAY RANDALL, ) Appeal from
Plaintiffs-Appellees, ) Circuit Court of
v. ) Champaign County
WAL-MART STORES, INC., ) No. 92L79
Defendant-Appellant, )
and )
STAHLY TRUCK CITY, INC., STAHLY TRUCKS, )
INC., MCLEAN COUNTY TRUCK CO., QUALITY )
TRUCK AND EQUIPMENT CO., AZZARELLI )
BUILDERS, INC., CHAMPAIGN ASPHALT CO., )
and APCORN CORPORATION, d/b/a ) Honorable
UNIVERSITY ASPHALT CO., ) John G. Townsend,
Defendants. ) Judge Presiding.
_________________________________________________________________
JUSTICE McCULLOUGH delivered the opinion of the court:
Defendant Wal-Mart Stores, Inc. (Wal-Mart), appeals from
a judgment entered in the circuit court of Champaign County in
favor of plaintiffs Ronald and Mary Randall. The jury awarded
$1,075,000 to Ronald and $100,000 to his wife Mary. After taking
into account setoffs for prior settlements, judgment was entered on
the jury verdicts against defendant in the amount of $649,981.85
for Ronald and $0 for Mary. This case involved recovery under the
Structural Work Act (Act) (Ill. Rev. Stat. 1989, ch. 48, pars. 60
through 69) for injuries occurring on August 23, 1991.
The issues are whether (1) defendant was entitled to a
directed verdict at the close of plaintiffs' case in chief or at
the close of all the evidence because the evidence failed to
establish that defendant was in charge of the work and wilfully
violated the Act; (2) judgment should have been entered in
accordance with the jury's response to a special interrogatory
relating to whether defendant was in charge; and (3) defendant was
entitled to a new trial because the jury was not properly instruct-
ed regarding the issues and burden of proof, particularly concern-
ing the question of whether defendant was in charge. We affirm.
Shortly before oral argument in this case, defendant
filed a motion which, although entitled a "Motion To Dismiss," in
effect sought vacatur of the judgment and abatement of plaintiffs'
action based on the repeal of the Act effective February 14, 1995
(Pub. Act 89-2, eff. February 14, 1995 (1995 Ill. Laws 7)). See
People v. Zito, 237 Ill. 434, 436, 86 N.E. 1041, 1042 (1908).
Defendant correctly points out that, if the repeal effectively cuts
off defendant's right to a cause of action in this case, the
circuit court and this court no longer have jurisdiction to
entertain plaintiffs' claims. Subject-matter jurisdiction concerns
the power of the court to hear a case and to grant the relief
requested, and where the courts are exercising jurisdiction
pursuant to a statute which has no counterpart in common law or
equity, as here, the courts must proceed within the strictures of
the statute and cannot exceed their statutory authority. People ex
rel. Brzica v. Village of Lake Barrington, 268 Ill. App. 3d 420,
423, 644 N.E.2d 66, 68-69 (1994). It is never too late to raise
the question of whether the courts have subject-matter jurisdic-
tion. Geise v. Phoenix Co. of Chicago, Inc., 159 Ill. 2d 507, 515,
639 N.E.2d 1273, 1276 (1994); Walton v. Pryor, 276 Ill. 563, 565,
115 N.E. 2, 3 (1916). Lack of subject-matter jurisdiction may be
raised for the first time on direct appeal (Muller v. Jones, 243
Ill. App. 3d 711, 712, 613 N.E.2d 271, 272 (1993)) or in a
collateral attack on the judgment (Campbell v. White, 187 Ill. App.
3d 492, 504, 543 N.E.2d 607, 615 (1989)).
Defendant's motion cites the recent decision in Scott v.
Midwest, Ltd., 933 F. Supp. 735 (C.D. Ill. 1996), as authority for
the proposition that, once the Act had been repealed, plaintiffs
are entitled to no recovery. Because the federal decision applies
rules of statutory construction as rules of law in such a way as to
defeat legislative intent rather than to give it effect, we decline
to adopt the reasoning in that decision.
The cardinal rule of statutory construction is to
ascertain and give effect to the true intent and meaning of the
legislature. State Farm Fire & Casualty Co. v. Yapejian, 152 Ill. 2d 533, 540-41, 605 N.E.2d 539, 542 (1992). The language of the
statute is the best indicator of that intent, and aids for
construing a statute will only be resorted to if the language of
the statute is not clear. Solich v. George & Anna Portes Cancer
Prevention Center of Chicago, Inc., 158 Ill. 2d 76, 81, 630 N.E.2d 820, 822, (1994).
The basic premise of the decision in Scott is that the
statute repealing the Act is not ambiguous. However, as already
noted, if the statutory language is clear and unambiguous, there is
no need to resort to aids for construction. Nevertheless, the
decision in Scott finds absence of ambiguity because the legisla-
ture is presumed to know the law in effect at the time of the
enactment. That is a rule of statutory construction to which
resort would not have to be made if the repealing statute was not
in fact ambiguous. A repealing act which does not state whether it
is to be applied retroactively or prospectively is ambiguous to
that extent.
Often the legislature does not express its intention as
to whether a new enactment is to be given effect retroactively or
prospectively. Therefore, rules of statutory construction have
been developed to assist the courts in making this determination.
For example, it is often stated that, in the absence of express
language regarding legislative intent as to whether an enactment or
an amendment is to be applied retroactively or prospectively, the
courts presume the legislature intended the enactment or amendment
to operate prospectively and not retroactively. Schantz v. Hodge-
VonDeBur, 113 Ill. App. 3d 950, 952-53, 447 N.E.2d 1355, 1357
(1983); see also Dunn v. Illinois Central Gulf R.R. Co., 215 Ill.
App. 3d 190, 195, 574 N.E.2d 902, 905 (1991). Although statutes
are not generally construed so as to be applied retroactively,
remedial or procedural statutes may be applied retroactively.
Hogan v. Bleeker, 29 Ill. 2d 181, 184, 193 N.E.2d 844, 847 (1963).
However, even remedial or procedural statutes will not be applied
retroactively if to do so would result in deprivation of a vested
right. Delbecarro v. Cirignani, 261 Ill. App. 3d 644, 648, 633 N.E.2d 981, 983 (1994).
In this case, the issue is presented by motion and is not
fully briefed. Nevertheless, even assuming the act was remedial in
nature and that plaintiffs had no vested right (see Vance v.
Rankin, 194 Ill. 625, 629, 62 N.E. 807, 809 (1902) (a statutory
cause of action which has not been commenced, prosecuted, and
concluded is an inchoate right), we find that retroactive applica-
tion of the repeal of the Act to be inconsistent with express
legislative intent.
For repeals, the presumption is that the legislature
intended the repealing statute to be applied retroactively, unless
there is an expression of legislative intent to the contrary. The
legislature has the power to withdraw the jurisdiction of the court
over statutory causes of action by repealing the act, and the
result of a repeal given retroactive application is to leave all
such causes of action and pending suits where they are at the time
of the repeal. Hogan, 29 Ill. 2d at 185, 193 N.E.2d at 847. When
a repealing act is passed and nothing is substituted for the former
act, the former act will be construed as having no more force or
effect. City of Chicago v. Degitis, 383 Ill. 171, 175, 48 N.E.2d 930, 932 (1943). It is as if it had never been enacted in the
first place except as to proceedings passed and closed. Holcomb v.
Boynton, 151 Ill. 294, 297, 37 N.E. 1031, 1032 (1894). As a
result, if final relief has not been granted, it may not be granted
after the repeal. Shelton v. City of Chicago, 42 Ill. 2d 468, 473-
74, 248 N.E.2d 121, 123-24 (1969). This is so even if judgment has
been entered in the trial court, and the cause is pending on
appeal. Lincoln Community High School District No. 404 v. Elkhart
Community High School District No. 406, 414 Ill. 466, 468, 111 N.E.2d 532, 533-34 (1953). The appellate court must dispose of the
case based on the law in effect at the time of its decision.
Vance, 194 Ill. at 627-28, 62 N.E. at 808. One manner in which the
legislature may avoid this result is by including a savings clause
in the repealing act. See People ex rel. Eitel v. Lindheimer, 371 Ill. 367, 372-73, 21 N.E.2d 318, 321 (1939). However, the general
savings clause in the Statutory Construction Act (Ill. Rev. Stat.
1961, ch. 131, par. 4, now 5 ILCS 70/4 (West 1994)) has no applica-
tion to repeals. Shelton, 42 Ill. 2d at 474, 248 N.E.2d at 124.
There is no savings clause in the statute repealing the
Act. However, the legislature did express its intent that the
repeal not bar an action which had accrued prior to the effective
date of the repeal in a preamble to the repealing statute as
follows:
"WHEREAS, It is the intent of the General
Assembly that the repeal of the [Act] shall
operate as a bar to any action accruing on or
after the effective date of this Public Act;
and
WHEREAS, It is the intent of the General
Assembly that any action accruing under the
[Act] before the effective date of this Public
Act may be maintained in accordance with the
provisions of that Act as it existed before
its repeal by this Public Act[.]" 740 ILCS
Ann. 150/0.01 through 9, Historical & Statuto-
ry Notes, at 100 (Smith-Hurd Supp. 1996); Pub.
Act 89-2, eff. February 14, 1995 (1995 Ill.
Laws 7).
Although a preamble is not part of the act, it may be used to
clarify an ambiguous portion of an act, but not to create an
ambiguity. Triple A Services, Inc. v. Rice, 131 Ill. 2d 217, 226-
27, 545 N.E.2d 706, 709 (1989). A preamble is an important
expression of legislative intent because it accompanied the bill
through the legislative process. 2A N. Singer, Sutherland
Statutory Construction 47.04, at 146-47 (5th ed. 1992).
Although courts in other cases have construed repealing
statutes as not saving causes of action accruing before the
effective date of the repeal, defendant cites no case in which the
legislature's intention to the contrary was clearly expressed in
the preamble to the repealing statute. There is no doubt that had
this case involved a repealing statute without a savings clause and
without any expression of legislative intent concerning the
retroactive or prospective application of the statute, this court
would be bound by stare decisis to interpret it as being applied
retroactively so as to abate plaintiffs' actions. See 2A N.
Singer, Sutherland on Statutory Construction 45.15 (5th ed. 1992).
Based on the express legislative intent in the case at
bar, the statute repealing the Act is construed to apply prospec-
tively only. The defendant's motion designated "Motion To Dismiss"
is denied.
The material in this section is not to be published
pursuant to Supreme Court Rule 23. Official Reports Advance Sheet
No. 15 (July 20, 1994), R. 23, eff. July 1, 1994.
Nonpublishable material omitted under Supreme Court Rule 23.
The judgment of the circuit court of Champaign County is
affirmed.
Affirmed.
COOK, P.J., and GARMAN, J., concur.
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