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07/31/87 U. S. Air, Inc., v. Prestige Tours

July 31, 1987

U. S. AIR, INC., PLAINTIFFS-APPELLANTS

v.

PRESTIGE TOURS, INC., D/B/A PRESTIGE TRAVEL, ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

512 N.E.2d 68, 159 Ill. App. 3d 150, 111 Ill. Dec. 164 1987.IL.1099

Appeal from the Circuit Court of Cook County; the Hon. Albert Green, Judge, presiding.

APPELLATE Judges:

JUSTICE MURRAY delivered the opinion of the court. SULLIVAN, P.J., and PINCHAM, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

This is an appeal by one or more of the plaintiffs from an order of the trial court denying the filing of a second amended complaint seeking the substitution of the Air Lines Reporting Corporation as party-plaintiff. The underlying action is an action involving an alleged conversion of monies by defendants received from the sale of air transportation.

This is the second appeal of this case by some of the same plaintiffs on a matter of procedure. In the first appeal this court held that the trial court erroneously dismissed the cause as to some of the plaintiffs because they were foreign corporations doing business in Illinois without having obtained a certificate of authority as required by the Illinois Business Corporation Act. (Ill. Rev. Stat. 1981, ch. 32, par. 157.125 (repealed; now Ill. Rev. Stat. 1985, ch. 32, par. 13.70).) In the first appeal this court held that under Illinois statutes and the United States Constitution, foreign corporations engaged in interstate commerce could not be denied the right to sue in Illinois courts even though they failed to comply with Illinois law by obtaining a certificate of authority to transact business here. (U. S. Air, Inc. v. Prestige Tours, Inc. (1986), 143 Ill. App. 3d 457, 492 N.E.2d 1379). In this case, one or more of the plaintiffs complain that the trial court erred in denying their motion to make ARC the sole party-plaintiff. The record indicates one or more of the plaintiffs appeal in this case, because the record is confusing as to which of the 14 present plaintiffs are in fact appealing.

In the notice of appeal only one of the present 14 named plaintiffs appeals. That plaintiff is U.S. Air, Inc., a Delaware corporation. Yet, the brief filed in the case indicates seven of the present plaintiffs are plaintiffs-appellants. ARC, the corporation that the trial court refused to allow to be named the party-plaintiff, is not an appellant, nor is American Traffic Conference of America , the voluntary corporation which was the initial party. Despite the confusion as to who, in fact, are the appellants in this case and who was injured by the trial court order, three defendants, Prestige Tours, Inc., d/b/a Prestige Travel, Daniel S. Mahru and David N. Moore have filed a motion to dismiss the appeal. This court took the motion to dismiss the appeal with the case. The three defendants responded to the plaintiff or plaintiffs, who appealed by a brief indicating they elected to rest on their motion to dismiss the appeal.

This court now grants the motion to dismiss the appeal for the following reasons. The court first sets out the history of the litigation if only to demonstrate the procedural merry-go-round our modern law of procedure sometimes places a litigant on.

The underlying action was filed in 1981. It involves a sales agency agreement of an entity known as Air Traffic Conference of America, a division of the Air Transport Association of America, an unincorporated association. For brevity's sake, the court will call it the ATC, hoping the readers will not confuse it with the old civilian branch of our air force that so successfully transported military personnel throughout the world in World War II. The original complaint involved multicounts charging the defendants with breaches of their agreement with ATC by failing to turn over proceeds from the sale of airline tickets to individual airlines who became plaintiffs, fraud, conversion, and breach of trust. The complaint was filed on March 11, 1980.

On March 14, 1980, defendants filed their answer and moved to dismiss the association on the basis that ATC had no standing to maintain the action as a voluntary association. The trial court granted the motion. The trial court's action was procedurally sound because, at the time, March 14, 1980, a voluntary association such as ATC could not sue or be sued in its own name under Illinois procedural law. U. S. Air Line, Inc. v. Prestige Tours, Inc. (1986), 143 Ill. App. 3d 457, 458, 492 N.E.2d 1379.

Plaintiffs filed an amended complaint substituting individual airlines as party-plaintiffs. Defendants answered and moved to dismiss because certain of the airlines had failed to register as foreign corporations doing business in Illinois as required by section 125 of the then-effective Illinois Business Corporation Act. (Ill. Rev. Stat. 1979, ch. 32, par. 157.125 (repealed; now Ill. Rev. Stat. 1985, ch. 32, par. 13.70).) On September 9, 1980, the trial court granted the motion to dismiss and the plaintiffs appealed. As indicated above, this court by its opinion filed May 2, 1986, reversed the trial court's order dismissing the airlines that failed to register as foreign corporations. After this court's order of reversal, the matter, in accordance with this court's mandate, was reinstated in the trial court.

Plaintiffs again sought to reinstate the association as plaintiff on the basis of section 2-209.1 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 2-209.1) That provision of the Illinois Code of Civil Procedure effective January 1, 1984, provided in part that a voluntary unincorporated association like ATC could sue or be sued in its own name. On May 13, 1985, the trial court denied plaintiffs' motion for leave to reinstate ATC as a plaintiff pursuant to this court's decision in Brucato v. Edgar (1984), 128 Ill. App. 3d 260, 470 N.E.2d 615. In the Brucato case, this division of this court ruled that the statute effective January 1, 1984, permitting voluntary associations to sue or be sued in their own name could not be applied retroactively. ATC is not now and has not been a party to the litigation since 1980. As of the writing of this opinion, 13 individual airlines are party-plaintiffs. As indicated, only one or six are named appellants in this appeal.

On January 13, 1986, prior to the filing of this court's opinion in the initial appeal, the 13 airlines still party-plaintiffs filed a motion for leave to substitute the airline reporting corporation as party-plaintiff. In support of their motion they alleged that ATC, the voluntary unincorporated association, was dissolved and its claim was assigned to ARC, the Delaware corporation. The ...


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