Cox v. Thee Evergreen Church

804 S.W.2d 190, 1991 WL 3549
CourtCourt of Appeals of Texas
DecidedFebruary 21, 1991
Docket01-90-00204-CV
StatusPublished
Cited by2 cases

This text of 804 S.W.2d 190 (Cox v. Thee Evergreen Church) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cox v. Thee Evergreen Church, 804 S.W.2d 190, 1991 WL 3549 (Tex. Ct. App. 1991).

Opinion

OPINION

HUGHES, Justice.

The plaintiff in this case, Karen Cox, appeals from the granting of summary judgment. We affirm.

*191 The underlying facts in this case are not complicated. On November 4, 1986, Cox proceeded to take her son to Thee Evergreen Church day care program. As she entered the educational building, on the church premises, she slipped and fell, resulting in injuries to her back.

By way of her fifth amended original petition, appellant brought suit against Thee Evergreen Church and Thee Evergreen Congressional Church, appellees, collectively hereinafter referred to as the “Church.” She alleged that her injury was the direct result of appellees’ negligence or gross negligence. She specifically alleged the Church was negligent: 1) in permitting the tile floor in the educational building to become slick from dampness or moisture; 2) in failing to warn her of the dangerous condition caused by the dampness and moisture on the tile floor; and 3) under the doctrine of res ipsa loquitur.

At the time of the occurrence of her mishap, appellant was, and had been for four years immediately preceding her injury, a member of the Church. In addition, she had been sitting on the church administrative board. After Cox’s injury, Thee Evergreen Church incorporated on March 19, 1989, and then became known as Thee Evergreen Congregational Church. The Church sought and obtained summary judgment.

Because this is an appeal from a summary judgment procedure, the standard of review is whether the Church, pursuant to Tex.R.Civ.P. rule 166a(e), met its burden of establishing: 1) no issue of material fact existed; and 2) it was entitled to a judgment as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). Conflicts in the evidence are disregarded, the proof that tends to support the position of the party opposing the motion is accepted as true, and all doubts as to the genuine issue of material facts are resolved against the movant. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965); Ginther v. Taub, 570 S.W.2d 516, 519 (Tex.Civ.App.-Waco 1978, writ ref’d n.r.e.).

In the present case, the summary judgment does not state the specific ground on which summary judgment was granted; therefore, the party appealing from the judgment must establish that each of the independent bases alleged in the motion are insufficient to support the judgment. Tilotta v. Goodall, 752 S.W.2d 160, 161 (Tex.App.-Houston [1st Dist.] 1988, writ denied); McCrea v. Cubilla Condominium Corp., 685 S.W.2d 755, 757 (Tex.App.-Houston [1st Dist.] 1985, writ ref’d n.r.e.). An examination of the motion for summary judgment discloses that the Church assigns but one argument for dismissal of Cox’s cause of action against it in its prior unincorporated form and an exclusive and separate argument for dismissal of Cox’s cause of action against the Church in its present incorporated form.

Accordingly, the issues that we have been asked to resolve in this case concern whether, as a matter of law, the Church has established: 1) appellant, as a member of Thee Evergreen Church, an unincorporated association, did not have standing to sue for the injuries incurred by her on church property; and 2) Thee Evergreen Congregational Church, as an entity incorporated after the occurrence of appellant’s injuries, cannot be held liable for such injuries.

The formation of an unincorporated association is accomplished by the voluntary actions of individuals assembling themselves as a group to accomplish some lawful purpose. 7 TEX.JuR.3d Associations § 1 (1980). Our rules of civil procedure permit such associations to sue and be sued in their assumed name. Tex.R.Civ.P. 28 This rule has been construed to permit an unincorporated religious association to bring an action in its common name to enforce a substantial right. Darrett v. Church of God in Christ, 381 S.W.2d 720, 722 (Tex.Civ.App.-Texarkana 1964, writ ref’d n.r.e.).

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. Appellant has *192 asked us to construe rule 28 to give a member of an unincorporated religious association standing to sue the association for the negligence of one of the association’s members or agents. Appellant alleges through her fourth, fifth, and sixth points of error that a rule contrary to that which she advocates is against public policy and violates the open courts, due process, and equal protection provisions of the Texas Constitution, as well as the due process and equal protection provisions of the United States Constitution.

Appellant has failed to provide us with authority rendered by either this Court or our supreme court articulating the proposition that the adoption of rule 28 expanded or contracted the substantive rights of members of an unincorporated religious association. Furthermore, we do have a developed body of case law addressing the issue of whether a member of a nonreligious unincorporated association, ie. a labor union, may sue the association.

Looking to these cases, we see that the law prohibits a member of an unincorporated association from bringing a cause of action for negligence against the association. United Ass’n of Journeymen, Etc. v. Borden, 160 Tex. 203, 207, 328 S.W.2d 739, 741 (1959); Atkinson v. Thompson, 311 S.W.2d 250, 254 (Tex.Civ.App.-Houston 1958, writ ref’d n.r.e.). It has been held that members of an unincorporated association are coprincipals, and generally, such an association cannot be held liable to one of its members for the wrongful act of another member or agent of the association. Atkinson, 311 S.W.2d at 254. The rationale for this rule is that the injured member and the association are regarded as coprincipals, and the tortfeasor as their common agent. Id. Consequently, the wrongful conduct of the agent is imputed to the plaintiff for the purposes of his action against the association. Borden, 160 Tex. at 208, 328 S.W.2d at 742; Atkinson, 311 S.W.2d at 254.

However, such immunity is not unfettered. Where a wrongful act is committed in the course of an undertaking that is strictly adverse to a plaintiffs interest, it will not be imputed to the plaintiff. Borden, 160 Tex. at 208, 328 S.W.2d at 742.

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Related

Cox v. Thee Evergreen Church
836 S.W.2d 167 (Texas Supreme Court, 1992)

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804 S.W.2d 190, 1991 WL 3549, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-v-thee-evergreen-church-texapp-1991.