Zielnik v. Loyal Order of Moose, Lodge No. 265

• Decision Date: 26 August 1988
• Docket Number: No. 86-0241,86-0241
• Citation: 528 N.E.2d 384,123 Ill.Dec. 839,174 Ill.App.3d 409
• Parties: , 123 Ill.Dec. 839 Frank C. ZIELNIK, Plaintiff-Appellant, v. LOYAL ORDER OF MOOSE, LODGE NO. 265, an unincorporated association, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 384

528 N.E.2d 384

174 Ill.App.3d 409, 123 Ill.Dec. 839

Frank C. ZIELNIK, Plaintiff-Appellant, v. LOYAL ORDER OF MOOSE, LODGE NO. 265, an unincorporated association, Defendant-Appellee.

No. 86-0241.

Appellate Court of Illinois First District, Fifth Division.

Aug. 26, 1988.

Holstein, Mack and Dupree, Chicago (John M. Mack, of counsel), for plaintiff-appellant.

Sandra Young, John T. Wardrope, Joseph T. Scally, Purcell & Wardrope, Chtd., Chicago, for defendant-appellee.

Justice PINCHAM delivered the opinion of the court:

This appeal is from the dismissal of plaintiff's complaint against the defendant, the Loyal Order of Moose, Lodge No. 265, an unincorporated association. The sole issue on review is whether the defendant, Loyal Order of Moose had the capacity to be sued when plaintiff's complaint was filed.

On April 11, 1985, the plaintiff, Frank C. Zielnik, filed a complaint against the defendant. The complaint, based on negligence, alleged that on August 6, 1983, plaintiff stumbled and tripped over a chair on defendant's dance floor. The defendant responded to the complaint with a motion to dismiss asserting that as a voluntary unincorporated association it did not have the legal capacity to sue or be sued. On December 24, 1985, the trial court granted defendant's motion to dismiss. Plaintiff appeals. We affirm.

On appeal, plaintiff contends that pursuant to section 2-209.1 of the Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, par. 2-209.1) the defendant, Loyal Order of Moose, an unincorporated association has the capacity to be sued. The defendant argues that section 2-209.1 is not applicable because the events complained of took place four months prior to the effective date of section 2-209.1.

The General Assembly enacted section 2-209.1 in an apparent response to the criticism of the doctrine that under common law, a voluntary unincorporated organization had no legal existence independent of the members who composed it, and could neither sue or be sued in its own name in an action at law. (American Federation of Technical Engineers, Local 144 v. La Jeunesse (1976), 63 Ill.2d 263, 347 N.E.2d 712.) Section 2-209.1 of the Code of Civil Procedure (Ill.Rev.Stat. 1985, ch. 110, par. 2-209.1), which became effective January 1, 1984, provides:

"A voluntary unincorporated association may sue and be sued in its own name and may complain and defend in all actions. * * * "

The plaintiff, in the case at bar, urges this court to apply section 2-209.1 to the instant case, despite the fact that the events complained of took place on August 6, 1983, before the effective date of section 2-209.1, January 1, 1984.

A retroactive law is defined as one which "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." (Brucato v. Edgar (1984), 128 Ill.App.3d 260, 83 Ill.Dec. 489, 470 N.E.2d 615.) Retroactive legislation is not favored and it is presumed that the legislature intended a provision to operate prospectively only if a contrary intent is expressed or clearly indicated by the language therein. (Rivard v. Chicago Fire Fighters (1988), 122 Ill.2d 303, 119 Ill.Dec. 336, 522 N.E.2d 1195, Village of Wilsonville v. SCA Services, Inc. (1981), 86 Ill.2d 1, 55 Ill.Dec. 499, 426 N.E.2d 824.) There is no provision in section 2-209.1 for the retroactive application urged by the plaintiff in the instant case.

In Brucato v. Edgar (1984), 128 Ill.App.3d 260, 83 Ill.Dec. 489, 470 N.E.2d 615, a case similar to the case at bar, the plaintiff, as Zielnik in the case at bar, urged this court to apply section 2-209.1 retroactively. This court, reasoning that section 2-209.1 affected substantive rights as opposed to merely procedural rights because it created both new rights and obligations which did not previously exist, refused to do so. This court held that because section 2-209.1 affects substantive rights it could not be applied retroactively, absent a contrary intention by the legislature. This court examined the language of section 2-209.1 and found nothing indicating that section 2-209.1 should be...