Governing Bd. v. Pannill

• Decision Date: 16 June 1983
• Docket Number: No. 09,09
• Citation: 659 S.W.2d 670
• Parties: GOVERNING BOARD, The Daughters of the American Revolution House--The Freeman Plantation, Texas Society, Daughters of the American Revolution, et al., Appellants, v. Mrs. F. Hastings PANNILL, State Regent, Texas Society, Daughters of the American Revolution, Inc., et al., Appellees. FORT BEND CHAPTER, The National Society, Daughters of the American Revolution, et al., Appellants, v. Mrs. F. Hastings PANNILL, Mrs. Jesse M. Deware, III, et al. and the Attorney General for the State of Texas, Appellees. 82 081 CV.
• Court: Texas Court of Appeals

Page 670

659 S.W.2d 670

GOVERNING BOARD, The Daughters of the American Revolution

House--The Freeman Plantation, Texas Society,

Daughters of the American Revolution, et

al., Appellants, v.Mrs. F. Hastings PANNILL, State Regent, Texas Society,

Daughters of the American Revolution, Inc., et

al., Appellees.

FORT BEND CHAPTER, The National Society, Daughters of the

American Revolution, et al., Appellants, v.Mrs. F. Hastings PANNILL, Mrs. Jesse M. Deware, III, et al. and the Attorney General for the State of Texas, Appellees.

No. 09 82 081 CV.

Court of Appeals of Texas Beaumont.

June 16, 1983.

Rehearing Denied Sept. 21, 1983.

J.R. Cornelius, The Cornelius Law Firm, Jefferson, John J. Eikenburg, Clark G. Thompson, Monroe R. Talley, Houston for appellants.

James K. Peden, III, Dallas, Jesse M. DeWare, IV, Jefferson, Michael Maness, Theo Pinson, Greenwood, Koby, Old Pinson & Bussey, Houston, Welby Parish, Gilmer, for appellees.

OPINION

BROOKSHIRE, Justice.

The appellants, plaintiffs below, on April 1, 1975, brought this cause of action originally, apparently, in the form of a trespass to try title suit, in the District Court of Marion County, Texas.The appellants are boards and chapters of the Texas Society of the National Society of the Daughters of the American Revolution.In the initial pleadings there were member chapters and individual plaintiffs acting on behalf of the member chapters of the Texas Society of the Daughters of the American Revolution.This litigation encompassed, at an earlier time, approximately fifty-two (52) chapters and approximately several hundred individuals as plaintiffs.The defendants were Mrs. F. Hastings Pannill, Mrs. Claire McElroy, Mrs. Georgia B. Edman and Mrs. Kenneth Wickett, who were the respective regents (presidents) and treasurers of the Texas Society of the D.A.R. from 1973 to 1979.Mrs. Virginia Battle DeWare, Jesse M. DeWare, IV, and Diane Ellen DeWare Bumpus, were also defendants, who had purchased certain real property, improvements and personal property known as the Freeman Plantation or the Freeman Plantation House (being an historical house) from the Texas Society.Mr. C. Leland Hamel, a former counsel of the Texas Society, was also a defendant in a second lawsuit.The relief for which the petition pleaded was to set aside and cancel the deed and sale of the Freeman Plantation to the DeWares and to recover pecuniary damages alleged to have been sustained by the Texas Society of the D.A.R. in connection with the sale of the Freeman Plantation or Freeman Plantation House.

Before 1971, the Texas Society owned an historic building in Austin, Texas, which was used as a museum and headquarters.This historic property was condemned and taken by the Urban Renewal Agency of Austin, Texas.Then the Texas Society purchased an historic house (the Freeman Plantation) in the City of Jefferson, Marion County, Texas, for use as its main headquarters facility and also as a suitable building for antiques, furniture, genealogical papers and certain records of the State Society.This litigation has been prolonged.SeeEx Parte Edman, 609 S.W.2d 532(Tex.1980);Texas Soc. v. Fort Bend Chapter, 590 S.W.2d 156(Tex.Civ.App.--Texarkana1979, writ ref'd n.r.e.);Governing Board v. Pannill, 561 S.W.2d 517(Tex.Civ.App.--Texarkana1977, writ ref'd n.r.e.).These three (3) appellate decisions and opinions contain important background information and history concerning this subsequent appeal.After three (3) appellate encounters, a jury trial on the merits was conducted resulting in a verdict in which the jury found the sixty (60) special issues generally in favor of the appellees.The district court signed and rendered a judgment that these appellants, as plaintiffs, take nothing.

This appeal brings forward forty-one (41) points of error, all extremely well briefed, as well as sixteen (16)"reply points" and two (2) counterpoints, equally well briefed and argued.At the March, 1975, State Conference of the Texas Society, a certain motion was made and seconded that the Freeman Plantation be appraised and sold at fair market value.A standing vote was taken on the motion to sell with the results of one hundred fifty-eight (158) pro votes and one hundred forty-two (142) con votes.Certainly one of the major points of the appeal is that the one hundred fifty-eight (158) to one hundred forty-two (142) standing vote tally was not a majority of the votes entitled to be cast by the members present.Appellants first six (6) points of error attack the efficacy of the March, 1975, conference vote to authorize or empower the sale of the Freeman Plantation.

The appellants' initial six (6) points of error challenge Special IssueNo. 11.Special IssueNo. 11:

"Do you find from a preponderance of the evidence that the sale of the Freeman Plantation was authorized by less than a majority of the votes entitled to be cast by the members present when the voting was conducted at the 1975 TSDAR State Conference?

"Answer 'We do' or 'We do not'.

"We do not."

The appellants say that the negative answer of the jury is erroneous as a matter of law; that the trial court committed error in overruling plaintiffs' motion for instructed verdict and motion non obstante veredicto to the effect that the motion to sell the Freeman Plantation was not adopted by a majority vote; that there is no evidence to support the jury's negative answer; that the jury's negative answer is not supported by sufficient evidence and is so against the overwhelming weight and greater preponderance of the evidence as to be manifestly wrong and unjust, and that the sale of the Freeman Plantation was simply not authorized by the 1975State Conference.The official proceedings of the 1975Texas Society State Conference, in the form of a printed book, are in the record, the printed book having been introduced as an exhibit.During the Thursday morning, March 20th, 1975, business meeting, the State Chairman of Credentials, Mrs. B.A. Grainger, reported three hundred forty-two (342) voting delegates registered as of 9:00 o'clock P.M. on March 19, 1975, being the preceding day.Apparently, from the record, there were no later reports from the credentials committee as of March 20th.At the March 20, 1975, morning business meeting, Mrs. Thomas M. Daniel, Regent, Major James Kerr Chapter, introduced the following motion:

" 'In order to end this controversy which is destructive to the Texas Society and distasteful to individual chapters, I move the Freeman Plantation be appraised and sold at fair market value.The State Regent is authorized to sign the necessary papers.' "

This motion to sell the plantation was seconded by Mrs. Stanley A. Schmidt, Regent, Ol' Shavano Chapter.Immediately thereafter, Mrs. Delores Mohrle, the Registered Parliamentarian, ruled and stated that, according to the Standing Rules, this was a "main motion and would have to be referred to the Resolutions Committee."This morning business session was then recessed at 12:00 noon.

During the business meeting, held on Thursday afternoon (2:00 P.M.), March 20, 1975, the following transpired:

"The State Regent, Mrs. Fitzhugh Hastings Pannill, called the meeting to order at 2:00 p.m.Mrs. Henry G. Richardson, State Chairman, Resolutions Committee, brought the motion made by Mrs. Thomas Daniel, Major James Kerr Chapter, pertaining to the sale of Freeman Plantation.Discussion followed and an amendment was introduced to keep the DAR House until after 1978 in order to celebrate the Bicentennial.Mrs. Pannill requested Mrs. O' Neill, State Parliamentarian, to inform the Assembly of Parliamentary procedure at this point.Time of debate period of ten minutes and a simple majority is required for either the amendment or the motion.The amendment was lost by a standing vote of 163 to 128.The motion to sell the Freeman Plantation was passed by a standing vote of 158 pro and 142 con."

Texas Non-Profit Corporation Act, TEX.REV.CIV.STAT.ANN. art. 1396-2.02. A. (5)(Vernon 1980) empowers non-profit corporations:

"To sell, convey, mortgage, pledge, lease, exchange, transfer, and otherwise dispose of all or any part of its property ...."

Article 1396-2.12. A. first provides, generally, that one-tenth ( 1/10th) of the votes entitled to be cast shall constitute a quorum.Then article 1396-2.12. A. reads:

"The vote of the majority of the votes entitled to be cast by the members present, or represented by proxy at a meeting at which a quorum is present, shall be the act of the members meeting, unless the vote of a greater number is required by law, the articles of incorporation, or the by-laws."

We construe article 1396-2.12.A. that, to constitute a majority in conformity with the statute, fifty percent (50%) plus one (1) of the votes actually cast is not the meaning of the plain language of article 1396-2.12.A.The definitive, determinative question follows.What is a majority of the votes, under article 1396-2.12.A., which reads:

"The vote of the majority of the votes entitled to be cast by the members present ... shall be the act of the members meeting ...."

Following the plain language of the statute, this construction, in certain factual situations, would certainly be different from a majority of the votes cast.This is patently true because if a sufficient number of the voters, or delegates, although present, abstained; then to obtain a majority of the votes, the motion would have to carry by fifty percent (50%) plus one (1) of all the members entitled to vote and being actually present, rather than merely fifty percent (50%) of the votes plus one (1) of the votes actually cast.We think that the plain, unambiguous wording of article 1396-2.12. A. compels us to this construction.Although we agree with the construction and interpretation of article 1396-2.12.A., as urged by the appellants, yet, because of the evidentiary or factual record before us, we hold that the jury...