Cox v. Thee Evergreen Church, No. D-0938

• Court: Supreme Court of Texas
• Writing for the Court: HIGHTOWER; Concurring opinion by COOK, J., joined by HECHT; Dissenting opinion by GONZALEZ; COOK; HECHT; GONZALEZ
• Citation: 836 S.W.2d 167
• Decision Date: 01 July 1992
• Docket Number: No. D-0938
• Parties: Karen COX, Petitioner, v. THEE EVERGREEN CHURCH a/k/a Thee Evergreen Congregational Church, Respondent.

Page 167

836 S.W.2d 167 Karen COX, Petitioner,
v.
THEE EVERGREEN CHURCH a/k/a Thee Evergreen Congregational
Church, Respondent. No. D-0938. Supeme Court of Texas. July 1, 1992.
Rehearing Overruled Sept. 9, 1992.

Page 168

Timothy R. Cappolino, Conroe, for petitioner.

Michael C. Neel, Houston, for respondent.

OPINION

HIGHTOWER, Justice.

In this personal injury action, we consider whether a member of an unincorporated charitable association is precluded from bringing a negligence action against the association solely because of the individual's membership in the association. The trial court rendered summary judgment for the association. The court of appeals affirmed. 804 S.W.2d 190. We reverse the judgment of the court of appeals and remand

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the cause to the trial court for further proceedings.

I.

Karen Cox (Cox) was a member of Thee Evergreen Church (Evergreen), an unincorporated charitable association. ¹ Cox had been a member for four years and held a position on Evergreen's administrative board. On November 4, 1986, Cox dropped her son off at a "mothers day out" program, for which she paid a nominal fee, operated on Evergreen premises by volunteer members of the church. ² Upon entering the church, Cox slipped and fell, injuring her back and head. Cox brought an action against Evergreen alleging negligence and gross negligence. The trial court granted a motion for summary judgment filed on behalf of Evergreen on the ground that a member of an unincorporated charitable association lacks standing to maintain an action against the association. The court of appeals affirmed.

Cox argues that a member of an unincorporated charitable association should not be precluded from bringing a cause of action for negligence against the association solely because of the individual's membership in the association. We agree.

II.

An unincorporated association is a voluntary group of persons, without a charter, formed by mutual consent for the purpose of promoting a common enterprise or prosecuting a common objective. ³ Black's Law Dict. 1531-32 (6th ed. 1990). Historically, unincorporated associations were not considered separate legal entities and had no existence apart from their individual members. See Tunstall v. Wormley, 54 Tex. 476, 481 (1881) (since church was not organized under the corporation act, "it was incapable, as a corporation, of suing or being sued, or of holding real estate; that it had no corporate name or existence ..."); Burton v. Grand Rapids School Furniture Co., 10 Tex.Civ.App. 270, 31 S.W. 91, 92 (1895, no writ) ("An unincorporated association is no person, and has not the power to sue or to be sued."); Home Benefit Ass'n No. 3 of Coleman County v. Wester, 146 S.W. 1022, 1023 (Tex.Civ.App.--Austin 1912, no writ) ("[A]n unincorporated voluntary association, organized for charitable and not for business purposes, can neither sue nor be sued in its capacity as an association."). Because of the lack of a separate legal status, it was generally considered that unincorporated associations could only hold property through the intervention of trustees. See, e.g., O.K.C. Corp. v. Allen, 574 S.W.2d 809, 812 (Tex.Civ.App.--Texarkana 1978, writ ref'd n.r.e.); Parrish v. Looney, 194 S.W.2d 419 (Tex.Civ.App.--Galveston 1946, no writ). For the same reason, a judgment

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could not be rendered against such an association. See Methodist Episcopal Church South v. Clifton, 34 Tex.Civ.App. 248, 78 S.W. 732, 734 (1904, writ ref'd).

Consequent to the lack of legal identity, special rules arose concerning liability in actions involving unincorporated associations. In regard to contracts, members incurring the debt on behalf of the association or assenting to its creation were personally liable. See Abrams v. Brent, 362 S.W.2d 155, 159 (Tex.Civ.App.--Austin 1962, writ ref'd n.r.e.); Summerhill v. Wilkes, 63 Tex.Civ.App. 456, 133 S.W. 492, 493 (1910, no writ). In regard to tort actions, member liability depended upon such factors as the nature of the association and the individual member's involvement in the conduct giving rise to the cause of action. See Golden v. Wilder, 4 S.W.2d 140, 143-44 (Tex.Civ.App.--Fort Worth 1928, no writ). See generally 6 Am.Jur.2d Associations and Clubs § 48 (1963); Annotation, Liability of Member of Unincorporated Association for Tortious Acts of Association's Nonmember Agent or Employee, 62 A.L.R.3d 1165 (1975).

The rule of law also developed that an unincorporated association was not liable to one of its members for damages occasioned by the wrongful act of another member or agent of the association. United Ass'n of Journeymen and Apprentices v. Borden, 160 Tex. 203, 207, 328 S.W.2d 739, 741 (1959). See also Anderson v. Painters Local Union, 161 Tex. 129, 134, 338 S.W.2d 148, 152 (1960). Such immunity was grounded on the concept that the injured member and the association were regarded as coprincipals, with the tortfeasor as their common agent. The wrongful conduct was thus "imputed" to the plaintiff for purposes of his action against the association. Id. In effect, it was considered that the plaintiff was suing himself. See Brotherhood of Railroad Trainmen v. Allen, 230 S.W.2d 325, 327 (Tex.Civ.App.--Waco 1950, writ ref'd), cert. denied, 340 U.S. 934, 71 S.Ct. 501, 95 L.Ed. 674 (1951); Atkinson v. Thompson, 311 S.W.2d 250, 254 (Tex.Civ.App.--Houston 1958, writ ref'd n.r.e.) ("[A]s a member of the Brotherhood he is jointly responsible with all other members for the actions of the group itself, and accordingly as a principal he has no cause of action against co-principals for the wrongful conduct of a common agent."). It is this rule of law that Evergreen contends precludes Cox's claim.

III.

Cox advances three arguments for allowing her to maintain a cause of action. First, Cox argues that the common law principles have been modified by a series of statutes concerning suits by and against unincorporated joint stock companies and associations. See Tex.Rev.Civ.Stat.Ann. arts. 6133-6138 (Vernon 1970) (entitled "Unincorporated Joint Stock Companies"). Article 6133 provides:

Any unincorporated joint stock company or association, whether foreign or domestic, doing business in this State, may sue or be sued in any court of this State having jurisdiction of the subject matter in its company or distinguishing name; and it shall not be necessary to make the individual stockholders or members thereof parties to the suit.

Id. at art. 6133. Articles 6134-6138 provide a method of citation and establish rules regarding liability of association members for adverse judgments. Id. at arts. 6134-6138. ⁴

We must determine whether articles 6133-6138 are applicable to unincorporated

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charitable associations. In Realty Trust Co. v. First Baptist Church of Haskell, 46 S.W.2d 1009 (Tex.Civ.App.--Eastland 1932, no writ), the court held: "[I]t is our opinion that the article has no application to an unincorporated religious society. It is not a joint stock company or association doing business in this state." Id. at 1010. See also Gribble v. Call, 123 S.W.2d 711, 715 (Tex.Civ.App.--Eastland 1938, writ dism'd judgmt cor.) (restating Realty Trust holding that article 6133 only applies to those unincorporated associations "doing business in this state"); San Antonio Fire Fighters' Local Union v. Bell, 223 S.W. 506, 508 (Tex.Civ.App.--San Antonio 1920, writ ref'd) (language of statute implies intent to confine application to matters of business). See also Minton v. Leavell, 297 S.W. 615, 622 (Tex.Civ.App.--Galveston 1927, writ ref'd). We find these cases persuasive, and conclude that articles 6133-6138 do not apply to unincorporated charitable associations.

Cox next looks to rule 28 of the Texas Rules of Civil Procedure. ⁵ Rule 28 has been interpreted as treating unincorporated associations as legal entities, at least to the extent of obtaining and enforcing judgments against them. See, e.g., Darrett v. Church of God In Christ No. 1, 381 S.W.2d 720, 722 (Tex.Civ.App.--Texarkana 1964, writ ref'd n.r.e.) (stating that rule 28 appears broad enough to give an unincorporated religious association a "procedural right to bring an action in its common name to enforce a substantive right"); Post No. 581, American Legion, Dep't of Texas v. Department of Texas, American Legion, 290 S.W.2d 712, 715 (Tex.Civ.App.--Fort Worth 1956, no writ). The court of appeals correctly recognized the effect of this rule when it held: "Pursuant to rule 28, members of an unincorporated religious association may be sued or prosecute their claims, as to third parties, under the association's assumed name as a legal entity." 804 S.W.2d at 191. There can be no doubt that, at least to the extent of obtaining and enforcing judgments against them, rule 28 treats unincorporated associations as legal entities. This conclusion, however, does not complete our inquiry. Rule 28 generally does not affect substantive rights. See Tex.R.Civ.P. 815. As previously discussed, under the substantive law as it presently exists, Cox is precluded from asserting her claim. For this reason, rule 28 alone is not determinative.

Lastly, Cox argues that the common law principle precluding her from bringing a negligence action solely because of her membership in the association should be abolished. We agree. ⁶

As discussed above, an unincorporated association was historically not liable to one of its members for damages occasioned by the wrongful act of another member or agent of the association. See Borden, 328 S.W.2d at 741. This court, however, has recognized various situations in which membership alone is an insufficient reason to preclude a member of an unincorporated association from asserting a cause of action against the association. In Borden, we held that the wrongful act of an unincorporated association will not be imputed to the injured member when the act is committed in the course of an undertaking strictly adverse to the...