Appeal from the Circuit Court of Cook County; the Hon. Jack M.
Michaelree, Judge, presiding.
PRESIDING JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 30, 1984.
Plaintiff trustees brought an action to recover $2,500 allegedly owed to them by defendant P.J.G. & Associates, Inc. (P.J.G.), under a collective bargaining agreement. The circuit court granted P.J.G.'s motion to dismiss and denied the trustees' motion to vacate the dismissal. The trustees appeal from both orders.
Plaintiffs are trustees of an employee welfare trust created by a collective bargaining agreement between the Electrical Contractors' Association of Chicago and Local Union No. 134 International Brotherhood of Electrical Workers. Employers who assent to the agreement are obligated to make certain fringe benefit contributions to the trust. P.J.G. is an employer who has assented to the agreement.
Because of its obligations under the agreement, P.J.G. obtained a bond from Frank B. Hall & Company (Hall) which provided that if defendant failed to make the necessary contributions to the trust pursuant to the agreement, Hall would make such payments with a right of indemnity against P.J.G. The bond, which is not included in the record, also provided a $2,500 deductible on the payment of fringe contributions before Hall makes any payments to the trust.
In August 1980, the trustees demanded payment from Hall under the bond, subtracting the $2,500 from the total amount claimed. On April 9, 1981, they filed the instant complaint against P.J.G. seeking the $2,500 deductible amount outstanding.
The trustees had filed an earlier action against P.J.G. in which they sought liquidated damages (80 M1 109010). That complaint was dismissed with prejudice on July 9, 1980, upon a finding that the trustees lacked standing to bring an action at law. The trustees' motion to vacate the order was filed on August 1, 1980, and remains pending.
The trustees raise four issues on appeal corresponding to the grounds upon which the circuit court based its dismissal, which include whether: (1) they are barred from maintaining the present action because of the dismissal of the earlier complaint under the doctrine of res judicata; (2) they are a voluntary unincorporated association which cannot maintain suit in Illinois; (3) State jurisdiction is preempted by the Employee Retirement Income Security Act of 1974 (29 U.S.C. § 1001 et seq. (1982)) (ERISA); and (4) they failed to exhaust their administrative remedies under the agreement by first submitting to arbitration.
The trustees maintain that they are not precluded by res judicata from bringing the present action because the 1980 judgment was not final by virtue of the pending motion to vacate and because the same claim was not involved in each action. We agree, but for another reason.
• 1 Before a judgment can stand as a bar to a subsequent action, it must first be determined whether that judgment was a final determination on the merits. (People ex rel. Scott v. Chicago Park District (1976), 66 Ill.2d 65, 69, 360 N.E.2d 773.) A dismissal based upon a plaintiff's lack of standing, as here, does not require a consideration of any substantive issues that may be involved. (People ex rel. Scott v. Chicago Park District (1976), 66 Ill.2d 65, 70.) The dismissal in 80 M1 109010 was not on the merits of the case and could not be a bar to the present action. Dismissal of the present cause on res judicata grounds was error and must be reversed.
• 2 The trustees next assert that the circuit court erred in determining they could not maintain this suit because they were suing on behalf of a voluntary, unincorporated association. The circuit court relied on the Illinois rule that a voluntary unincorporated association cannot sue or be sued in its own name because it has no separate legal existence independent of the members who compose it. (American Federation of Technical Engineers, Local 144 v. La Jeunesse (1976), 63 Ill.2d 263, 347 N.E.2d 712; Mulligan v. Teamsters Union, Local No. 971 (1978), 59 Ill. App.3d 587, 375 N.E.2d 891.) Unlike La Jeunesse and Mulligan, however, plaintiffs here are not suing as union members, but as trustees who have a separate, statutorily recognized legal existence, independent of the status of the members who comprise the unincorporated association, allowing them to sue and be sued, an issue recently decided in Pierce v. ...