Cooper v. Texas Gulf Industries, Inc., No. B--4089

CourtSupreme Court of Texas
Writing for the CourtSAM D. JOHNSON; Concurring opinion by WALKER, J., in which GREENHILL; WALKER; GREENHILL
Citation513 S.W.2d 200
Decision Date19 June 1974
Docket NumberNo. B--4089
PartiesGriffin COOPER et ux., Petitioners, v. TEXAS GULF INDUSTRIES, INC., et al., Respondents.

Page 200

513 S.W.2d 200
Griffin COOPER et ux., Petitioners,
v.
TEXAS GULF INDUSTRIES, INC., et al., Respondents.
No. B--4089.
Supreme Court of Texas.
June 19, 1974.
Rehearing Denied July 17, 1974.

J. Leonard Gotsdiner and Ranseler O. Wyatt, Houston, for petitioners.

Baer, Cryan, Keen & Kelly, Melvin R. Wilcox, III and Ralph A. Keen, Houston, for respondents.

SAM D. JOHNSON, Justice.

Petitioners Dr. Griffin Cooper and his wife, Dolores, appeal from summary judgment that they take nothing in a suit for cancellation and rescission of a sale of real estate to them by Texas Gulf Industries, Inc. (T.G.I.). Cooper and his wife sued T.G.I. on September 28, 1971 alleging fraud as ground for rescission and cancellation of the sale. T.G.I. moved for summary judgment asserting Dr. Cooper previously filed a suit on December 29, 1970, which suit was dismissed with prejudice on January 29, 1971, and that such dismissal with prejudice was res judicata of the instant action. The trial court granted T.G.I.'s motion for summary judgment that plaintiffs take nothing and the court of civil appeals affirmed. 495 S.W.2d 273. We reverse and remand.

In the prior suit filed December 29, 1970 Dr. Cooper was the sole plaintiff. He sought to terminate a management contract on the property at issue and alternatively sought to rescind the sale of the property. The trial court dismissed the first suit 'with prejudice.'

The Coopers argue that dismissal of the prior suit with prejudice is not res judicata of the instant suit because Dolores Cooper, being a grantee along with her husband in the deed to the real estate at issue, was a necessary party to a suit to cancel and rescind the sale. Accordingly, the Coopers assert, the trial court had no jurisdiction in the prior case and the judgment of dismissal with prejudice is invalid.

A decision on whether a wife is an indispensable party in an action which concerns her joint community property necessitates (1) a study of the Texas Family Code, Section 5.22 (1971), 1 to determine the nature of the community property, (2) a reexamination of the rule that a husband can act for and represent his wife in an action concerning their joint community property under the doctrine of virtual representation, and (3) a discussion of the application of Rule 39, as amended, Texas Rules of Civil Procedure (1971), concerning the joinder of parties.

THE NATURE OF THE COMMUNITY PROPERTY

T.G.I. says in its brief that the property in question is community property and the record bears this out. Both Coopers were named in the deed to the property in question and both signed a deed of trust executed in favor of T.G.I. Insofar as can be ascertained, both Coopers were obligated also on the notes given as consideration. Part of the consideration was payment of $45,000 in cash; the record does not reveal the source of these funds.

Page 202

Under Section 5.02, Texas Family Code (Supp.1971), property possessed by either spouse during marriage is presumed to be community property. In light of this presumption, and the absence of contrary evidence in the record, the court adopts T.G.I.'s statement that the property involved is community.

Under Section 5.22 community property falls into two categories with respect to management: Sole management community property and Joint management community property. On the basis of the record before us, the court must assume that the property is subject to joint management. Section 5.24 says, '(d)uring marriage, property is presumed to be subject to the sole management, control, and disposition of a spouse If it is held in his or her name . . ..' (Emphasis added.) All of the evidence, as noted above, indicates joint ownership of and joint liability for the property in question.

THE DOCTRINE OF VIRTUAL REPRESENTATION

One of the basic questions in this case is whether Dr. Cooper, in bringing the first suit without the joinder of his wife, acted as a representative of the community; whether he 'virtually represented' his wife in that action. If the doctrine has vitality, the dismissal with prejudice of that first suit would be binding upon the wife, Mrs. Dolores Cooper, and res judicata as to the second and instant suit.

Under the doctrine of virtual representation, a suit naming only the husband as a party is nonetheless binding on the wife. Starr v. Schoellkopf Co., 131 Tex. 263, 113 S.W.2d 1227 (1938); Gabb v. Boston, 109 Tex. 26, 193 S.W. 137 (1917); Jergens v. Schiele, 61 Tex. 255 (1884); Cooley v. Miller, 228 S.W. 1085 (Tex. Comm'n App. 1921, judgmt adopted); Hall v. Aloco Oil Co., 164 S.W.2d 861 (Tex.Civ.App.--Amarillo 1942, writ ref'd); 30 Tex.Jur.2d Husband and Wife § 167. The basis for virtual representation is the husband's power of sole management of the entire community.

Section 5.22 of the Family Code takes away the husband's sole right to manage all of the couple's community property. When joint management community property is involved, the husband and wife are now Joint managers. The wife is her husband's equal with respect to management; she stands in the same position as any other joint owner of property. While another section 2 provides that a spouse may sue and be sued without the joinder of the other, Neither spouse may virtually represent the other. The rights of the wife, like the rights of the husband and the rights of any other joint owner, may be affected only by a suit in which the wife is called to answer. If one of the spouses wishes the other to represent him or her, Section 5.22(c) of the Family Code permits that arrangement provided the consenting spouse authorizes that representation by a power of attorney or other agreement in writing. No such writing is in evidence here.

Dolores Cooper was not a party to the first suit; the doctrine of virtual representation was abolished by the new Family Code; there was no writing authorizing her husband to represent her. Accordingly, her interest in the Coopers' joint management community property is untouched by the judgment of dismissal with prejudice of the first suit.

THE JOINDER OF
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139 practice notes
  • United Statesa Tex. Lloyds Co. v. Menchaca, No. 14–0721
    • United States
    • Supreme Court of Texas
    • April 13, 2018
    ...proceed to judgment as is jurisdiction of the subject matter"), overruled in part on other grounds by Cooper v. Tex. Gulf Indus., Inc. , 513 S.W.2d 200 (Tex. 1974) ; Holland v. Taylor , 153 Tex. 433, 270 S.W.2d 219, 220 (1954) (holding that permitting a plaintiff who lacks standing to prose......
  • Texas Ass'n of Business v. Texas Air Control Bd., No. C-9556
    • United States
    • Supreme Court of Texas
    • March 3, 1993
    ...near nonexistence. Petroleum Anchor Equip., Inc. v. Tyra, 406 S.W.2d 891, 893-94 (Tex.1966); see also Cooper v. Texas Gulf Indus., Inc., 513 S.W.2d 200, 203 (Tex.1974). It was no accident that this court listed the case which the majority today overrules, Texas Indus. Traffic League v. Rail......
  • Indian Beach Prop. Owners' Ass'n v. Linden, No. 01-05-01116-CV.
    • United States
    • Texas Court of Appeals
    • March 22, 2007
    ...in this lawsuit did not deprive the trial court of jurisdiction to enter the declaratory judgment. See Cooper v. Tex. Gulf Indus., Inc., 513 S.W.2d 200, 204 (Tex.1974) (stating that "it would be rare indeed if there were a person whose presence was so indispensable in the sense that his abs......
  • Jennings v. Srp, No. 938
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • March 31, 1975
    ...Petroleum Anchor Equipment, Inc. v. Tyra, 406 S.W.2d 891 (Tex.Sup.1966) and see Cooper, et ux. v. Texas Gulf Industries, Inc., et al., 513 S.W.2d 200 (Tex.Sup.1974). Since the Probate Code has been amended deleting the requirement of service only on the executor or administrator (Art. 3433,......
  • Request a trial to view additional results
140 cases
  • United Statesa Tex. Lloyds Co. v. Menchaca, No. 14–0721
    • United States
    • Supreme Court of Texas
    • April 13, 2018
    ...proceed to judgment as is jurisdiction of the subject matter"), overruled in part on other grounds by Cooper v. Tex. Gulf Indus., Inc. , 513 S.W.2d 200 (Tex. 1974) ; Holland v. Taylor , 153 Tex. 433, 270 S.W.2d 219, 220 (1954) (holding that permitting a plaintiff who lacks standing to prose......
  • Texas Ass'n of Business v. Texas Air Control Bd., No. C-9556
    • United States
    • Supreme Court of Texas
    • March 3, 1993
    ...near nonexistence. Petroleum Anchor Equip., Inc. v. Tyra, 406 S.W.2d 891, 893-94 (Tex.1966); see also Cooper v. Texas Gulf Indus., Inc., 513 S.W.2d 200, 203 (Tex.1974). It was no accident that this court listed the case which the majority today overrules, Texas Indus. Traffic League v. Rail......
  • Indian Beach Prop. Owners' Ass'n v. Linden, No. 01-05-01116-CV.
    • United States
    • Texas Court of Appeals
    • March 22, 2007
    ...in this lawsuit did not deprive the trial court of jurisdiction to enter the declaratory judgment. See Cooper v. Tex. Gulf Indus., Inc., 513 S.W.2d 200, 204 (Tex.1974) (stating that "it would be rare indeed if there were a person whose presence was so indispensable in the sense that his abs......
  • Jennings v. Srp, No. 938
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • March 31, 1975
    ...Petroleum Anchor Equipment, Inc. v. Tyra, 406 S.W.2d 891 (Tex.Sup.1966) and see Cooper, et ux. v. Texas Gulf Industries, Inc., et al., 513 S.W.2d 200 (Tex.Sup.1974). Since the Probate Code has been amended deleting the requirement of service only on the executor or administrator (Art. 3433,......
  • Request a trial to view additional results

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