{
  "id": 3514624,
  "name": "FRANK C. ZIELNIK, Plaintiff-Appellant, v. LOYAL ORDER OF MOOSE, LODGE NO. 265, Defendant-Appellee",
  "name_abbreviation": "Zielnik v. Loyal Order of Moose",
  "decision_date": "1988-08-26",
  "docket_number": "No. 86\u20140241",
  "first_page": "409",
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  "last_updated": "2023-07-14T22:48:34.473456+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "FRANK C. ZIELNIK, Plaintiff-Appellant, v. LOYAL ORDER OF MOOSE, LODGE NO. 265, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "JUSTICE PINCHAM\ndelivered the opinion of the court:\nThis appeal is from the dismissal of plaintiff\u2019s 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\u2019s complaint was filed.\nOn 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\u2019s 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\u2019s motion to dismiss. Plaintiff appeals. We affirm.\nOn appeal, plaintiff contends that pursuant to section 2 \u2014 209.1 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2\u2014 209.1) the defendant, Loyal Order of Moose, an unincorporated association, has the capacity to be sued. The defendant argues that section 2 \u2014 209.1 is not applicable because the events complained of took place four months prior to the effective date of section 2 \u2014 209.1.\nThe General Assembly enacted section 2 \u2014 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 nor 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.) Section 2 \u2014 209.1 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 209.1), which became effective January 1, 1984, provides:\n\u201cA voluntary unincorporated association may sue and be sued in its own name, and may complain and defend in all actions.\u201d\nThe plaintiff, in the case at bar, urges this court to apply section 2 \u2014 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 \u2014 209.1, January 1,1984.\nA retroactive law is defined as one which \u201ctakes 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.\u201d (Brucato v. Edgar (1984), 128 Ill. App. 3d 260, 470 N.E.2d 615.) Retroactive legislation is not favored and it is presumed that the legislature intended a provision to operate prospectively unless a contrary intent is expressed or clearly indicated by the language therein. (Rivard v. Chicago Fire Fighters Union, Local No. 2 (1988), 122 Ill. 2d 303; Village of Wilsonville v. SCA Services, Inc. (1981), 86 Ill. 2d 1.) There is no provision in section 2 \u2014 209.1 for the retroactive application urged by the plaintiff in the instant case.\nIn Brucato v. Edgar (1984), 128 Ill. App. 3d 260, a case similar to the case at bar, the plaintiff, as Zielnik in the case at bar, urged this court to apply section 2 \u2014 209.1 retroactively. This court, reasoning that section 2 \u2014 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 \u2014 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 \u2014 209.1 and found nothing indicating that section 2 \u2014 209.1 should be applied retroactively. Therefore this court concluded that section 2 \u2014 209.1 should operate prospectively only.\nIn the case at bar, plaintiff argues that the controlling distinction in Brucato and the instant case is that in Brucato the complaint and the order of dismissal occurred prior to the effective date of section 2 \u2014 209.1. Plaintiff\u2019s distinction is insignificant. The crucial date for determining applicability of a statute is not when the rights are asserted by the filing of a complaint but when the cause of action accrued. (Marquette National Bank v. Loftus (1983), 117 Ill. App. 3d 771, 454 N.E.2d 11.) Accordingly, in Brucato, this court reasoned that the alleged conduct of the defendant on which plaintiff\u2019s cause of action was predicated occurred prior to the enactment of section 2\u2014 209.1 and the section was inapplicable.\nIn the instant case, the accident allegedly occurred on August 6, 1983, four months prior to the effective date of section 2 \u2014 209.1. To hold that section 2 \u2014 209.1 applies to the case at bar would be a retroactive application of section 2 \u2014 209.1, regardless of when the lawsuit was filed. Loyal Order of Moose\u2019s rights and obligations became vested as of the date of the occurrence, a time at which it did not have the legal capacity to sue or be sued. To now hold that defendant is amenable to suit for that occurrence amounts to an impairment of substantive rights.\nFor the foregoing reasons, we affirm the trial court\u2019s order dismissing plaintiff\u2019s complaint.\nAffirmed.\nSULLIVAN and MURRAY, JJ., concur.",
        "type": "majority",
        "author": "JUSTICE PINCHAM"
      }
    ],
    "attorneys": [
      "Holstein, Mack & Dupree, of Chicago (John M. Mack, of counsel), for appellant.",
      "Sandra Young, John T. Wardrope, and Joseph T. Scally, all of Purcell & Wardrope, Chartered, of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "FRANK C. ZIELNIK, Plaintiff-Appellant, v. LOYAL ORDER OF MOOSE, LODGE NO. 265, Defendant-Appellee.\nFirst District (5th Division)\nNo. 86\u20140241\nOpinion filed August 26, 1988.\nHolstein, Mack & Dupree, of Chicago (John M. Mack, of counsel), for appellant.\nSandra Young, John T. Wardrope, and Joseph T. Scally, all of Purcell & Wardrope, Chartered, of Chicago, for appellee."
  },
  "file_name": "0409-01",
  "first_page_order": 431,
  "last_page_order": 433
}