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N.w. Sub. Congregation Beth Judea v. Rosen

OPINION FILED FEBRUARY 25, 1982.

NORTHWEST SUBURBAN CONGREGATION BETH JUDEA, INC., PLAINTIFF-APPELLEE,

v.

MORDECAI M. ROSEN ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Lake County; the Hon. ALVIN IRA SINGER, Judge, presiding.

JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 25, 1982.

Defendants appeal the issuance of a temporary restraining order and preliminary injunction by the Lake County circuit court restraining them from using the name Congregation Beth Judea.

Plaintiff Northwest Suburban Congregation Beth Judea, Inc., was formerly incorporated under the name Congregation Beth Judea, Inc. The congregation was formed in 1968 to serve the Jewish community in the northwest suburbs of the Chicago metropolitan area. The congregation was incorporated under the name Congregation Beth Judea, Inc., on December 17, 1968.

In May 1981 the corporation was involuntarily dissolved for its failure to timely file an annual report with the Secretary of State. It continued to use its original name, however.

Earlier, in March 1981 defendant Mordecai Rosen, who had been the rabbi for plaintiff since 1969, organized a new congregation, Congregation Mishpaha (Our Family), with some members of the old congregation, including defendants Max and Adeline Feldman. Most of the area served by this new organization includes the community served by plaintiff.

In July 1981, having learned that plaintiff corporation had been involuntarily dissolved, Congregation Mishpaha sought incorporation under the name Congregation Beth Judea, Inc. It was incorporated under this name on July 10, 1981.

Plaintiff, still using the name Congregation Beth Judea, sought reinstatement as a corporation. Because defendants had incorporated under the name Congregation Beth Judea, Inc., plaintiff congregation was reinstated as a corporation under the name Northwest Suburban Congregation Beth Judea on August 21, 1981. Plaintiff continued to use the name Congregation Beth Judea. It was listed under this name in the listing of area houses of worship in a local newspaper. It advertised for new members in local newspapers under this name.

On Saturday, August 29, 1981, there appeared in a local newspaper an advertisement regarding High Holy Day services on behalf of defendant Congregation Beth Judea and indicating the rabbi as defendant Mordecai Rosen. Monday, August 31, 1981, plaintiff filed a verified complaint for permanent injunction, preliminary injunction, and temporary restraining order to restrain defendants from using the name Congregation Beth Judea. On the same date plaintiff also filed a motion for a temporary restraining order (TRO) and preliminary restraining order. Notice was given by telephone to defendants' attorney at 12:05 p.m. At 4:03 p.m. the court granted the temporary restraining order. On September 16, 1981, following an extensive hearing, the court also granted a preliminary injunction and defendants appealed.

The issues on appeal are as follows:

1. Whether the trial court abused its discretion in granting a temporary restraining order without notice and hearing to the defendants.

2. Whether a dissolved corporation which is subsequently reinstated under a changed name can maintain an action to enjoin the defendants from using its former name.

3. Whether the plaintiff could maintain this action under the corporate survival provision of the General Not for Profit Corporation Act. Ill. Rev. Stat. 1979, ch. 32, par. 163a et seq.

4. Whether the trial court should have dismissed the individual defendants on their motion for a directed verdict ...


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