### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00888- CV

MT F alkin Investm ents, L.L.C., Appellan t

v. Chish olm Trail Elk s Lodge No. 2659, Appellee

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 368 TH JUDICI AL DISTRICT

NO. 11- 642- C368, HO NORAB LE B URT CARNES, JUDGE P RESIDING

O P I N I O N
Appellant MT Fa lkin I nvestments, L

. L

. C. ( “ M T F a lk in ” ) a p p e a ls th e tr ial court’s final
summary judgme nt in favor of

appellee Chisholm Trail Elks L odg e No. 2649 (“Chisholm Trail”)

. MT Fa lkin sued Chisholm Trail for brea ch of contra ct, alleg ing that Chisolm Trail, as a member of the Wil liamson County Charitable Bing o Association (t h e “W C C BA ”), is liable for damag es resulting from the WC CBA’ s brea ch of a commerc ial proper ty lease

. On appea l, MT Fa lkin asser ts that the trial court err ed in g ranting summary judgme nt. We aff irm the judgme nt of the trial court.

BACK GR OUND Acc ording to its “Rest ated Articles of Org anization” (“WCCBA Articles” ), the
WC CBA is an “unincor

porate d not-for- profit association composed of up to six (6) members who
must also be non-prof

it org anizations

. . . .” The five members of the WC CBA are Chisholm Trail;
Geor g etown L ivestock Booster Club (the “B ooster Club”); Round Rock Optimist Club; St. Mary ’sSchool PTC; and the Wil liamson County Children’s Advoca cy Center. The WC CBA Articles state

that the purpose o f t h e association is “to conduct a share d char itable bingo opera tion” as well as other re lated cha

ritable a ctivities.
On J uly 1, 2008, the WC CBA enter ed into a five-y ear wr i t t en l ea se ag ree ment (the “L ease Ag ree ment”) wi t h MT Fa lkin for lease of MT Fa lkin’s commerc ial building, within which the WC CBA woul d opera te a bingo hall. The L ease Ag ree ment lists MT Fa lkin as the landlord an d t h e “[W CCBA], an unincorporated not-for- profit association,” as the tenant, and
prov i d es t h e corresponding rig hts and obli g ations of MT Fa lkin and the WC CBA. Three months afte r the lease commence d, the WC CBA informed MT Fa lkin that it was “ce asing the share d bingo business immediately ,” and the WC CBA subseque ntly defa ulted on the L ease Ag ree ment.
I n response , MT Fa lkin terminated the lease and sued Chisholm Trail and the Booster Club for damag es resulting from the WC CBA’ s brea ch of the L ease Ag ree ment. MT Fa lkin’s 1 pleading s alleg e that Chisholm Trail and the B ooster Club are eac h jointly and seve rally

liable for the damag es beca

use (1) “they authorized, assented and/or ratified the [L ease Ag ree ment]” and (2) “they wer e acting as a partne rship with the other WC CBA members.” The Booster Club failed to respond to the suit, and MT F alkin secur ed a de fault judg ment ag ainst the Booste r Club. 2

After some discovery , Chisholm Trail moved for summary judgme nt, asser ting that it is not vicar iously liable for the contra ct u al obliga tions of the WC CBA and that res judicata prohibited MT Fa lkin from rec overing damag es ag ainst Chisholm Trail afte r MT Fa lkin rec eived a

MT Fa lkin settled its claims wit h the other WCCBA member s. 1 The trial court sever ed MT Fa lkin’s claims ag ainst the Booster Club from its claims ag ainst 2 Chisholm Trail, and the claims ag ainst the Booste r Club are not part of this appe al. 2final judgme nt ag ainst the Booster Club. The trial co u rt gra n ted Chisholm Trail’s motion for

summary judgme nt. This appeal f ollowed.

STANDARD OF REVIEW Summary j udg ment is proper if the movant establishes that there are no g enuine issues of mater ial fac t and that the movant is e ntitled to judgme nt a s a matter of law. Tex. R. Civ.
P. 166a(c ). A defe ndant who co n cl usively neg ates at least one essential element of a plaintiff’s

c a u s e o f a c ti o n is e n ti tl e d to s u mm a r y ju d g me n t o n th a

t c la im

. I H S Ce d a r s Tre a tm e n t Ct

r
. o f D e S o to , Tex., Inc. v. Mason , 143 S.W .3d 794, 798 (Tex. 2004). When r eviewing a summary judgme nt, we take as true all evidenc e favor able to the nonmovant, and we indulge ever y rea sonable infere nce and resolve any doubts in the nonmovant’s favor

. Id. We revie w a trial court’s summary -judg ment ruling de novo. Valance O perating Co. v. Dorsett , 164 S.W .3d 656, 661 (Tex. 2005). When, as here, the trial cour t’s order g ranting summary judgme nt does not specify the g rounds relied upon, t h e ap p el l ant must show that eac h independe nt g round asser ted in the motion is insufficient to support summary judgme nt. See Picke tt v. Texas Mut. Ins. Co. , 239 S.W .3d 826, 840 (Tex. App.—Austin 2007, no pet.). Acc ording ly , we will aff irm the s ummary judgme nt if any g round advanc ed in Chisholm Trail’s summary -judg ment mot i o n is meritorious. See FM Props. Operating Co. v. City of Austin , 22 S.W .3d 868, 872–73 (Tex. 2000).

T he issues in this appea l primarily conce rn the construction of chapte r 252 of th e Texas Business Org anizations Code. See Tex. Bus. Org s. Code Ann. §§ 252.001–.017 (West 2012). Ch ap t er 2 52 is the codifica tion of the Texas Uniform Unincorpor ated Nonprofit Association Act (“TU UNAA” ), Texas’s version of the Uniform Unincorpor ated No n p rofit Association Act

3( “ U U

N A A ” ) , w h ic h th e le g is la

tu r e a d o p te d in 1 9 9 5

. S

e e id

. ; s e e a ls o A c t o f M a

y 2 4 , 1 9 9 5 , 7 4 th L e g . , R.S., ch

. 919, §§ 1–20, 1995 Tex. Gen. L aws 4567 (expired J an. 1, 2010); Unif. Unincorporated Nonprofit Ass’n Act

§§ 1–14 (ame nded 1996), 6B U.L .A. 709–51 (2008).
We revie w questions of statutory construction de novo. See First Am. Titl e Ins. Co. v. Combs , 258 S.W .3d 627, 631 (Tex. 2008). When construing a st atute, our primary objective is
t o as ce rt ai n and g ive eff

ect to the leg islature’s intent. Id. at 631–32. I n deter mining leg islativ e intent, we first consider the plain lang u age o f t h e s t atute. GMC v. Bray , 243 S.W .3d 678, 685 (Tex. App.—Austin 2007, no pet.). When statutory text is clea r, it is deter

minative of leg islative intent, unless enfor cing the plain m ea n i n g o f t he statute’s words would produce an absurd result. Entergy Gulf States, Inc . v. Summe rs , 282 S.W .3d 433, 437 (Tex. 2009).

Fur thermore , we construe uniform acts such as TUUNA A “to ef fect its g ener al purpose to make uniform the law of those states t hat have enac ted i t.” See Tex. Gov’t C ode Ann. § 311.028 (West 2005). Simi larly , althoug h the officia l comments to UUNAA are not law, they are
persua sive authority conce rning interpre tation of chapte r 252 beca use the leg islature presumably considere d those comments when it adopted the statute. See Fetter v. W ells Fargo Bank Tex., N.A. , 110 S.W .3d 683, 687 (Tex. App.—Houston [14t h Dist.] 2003, no pet.) (not i ng that courts g ive officia l comments to Uniform Comme rcia l Code weig ht when interpre ting statute). Wit h these principles in mind, we turn to the issues in this case.

DISCUSSIO N Chisholm Trail moved for summ ary judgme nt o n two independe nt g rounds. First, it asser ted t hat, as a matter of law, it is not liable under the L ease Ag ree ment beca use i t was not a
4p ar t y to the lease and, under chapte r 252 of the business org anizations code, it cannot b e l i ab l e

for the contra ctual obli g ations of t he W CCBA. Se co n d , C hisholm Trail asserted that res judicata prohibits MT Fa lkin from recove ring damag es aga inst Chisholm Trail after MT Fa lkin rec eived a final j udg ment ag ainst the Booster C lub. I n five iss ues on appea l, MT Fa l k i n ar g ues t hat t he trial
court e rre d in gr anting summary judgme nt on either of the se two g rounds. Wit h respe ct to liability for the L ea s e Agre ement, Chisholm Trail asser ted in its pleading s and motion for summary judgme nt that t h e W C C BA conducts joint char itable bingo
opera tions for the benef

i t o f i t s member- char ities. There fore , acc ording to Chisholm Trail, the
WC CBA constitutes an unincorporated nonprofit association subject to chapte r 252 of the business

o r g a n iz a ti o n s c o d e . S

e e T e x. B u s . O r g s . Co d e A nn . § 2 5 2

. 0 0 1 ( 2 ) ( d e f in in g u n in c o r p o r a te d n o n p r o f it 3 association). Fur

thermore , Chisholm Trail asser ted that as a member of an unincorporated nonprofit association, it could not be liable f or the WCCBA’s debts. See id. § 252.006(b) ( stating me mbers of nonprof

it association not liable for a ssociation debts based on me mbership).
On appea l, MT Fa lkin does not dispute that the WC CBA opera tes as a joint char itable bingo org anization or

that the WC CBA members are char itable org anizations. Rather, MT Fa lkin

asser ts that there is a g enuine issu e of materia l fac t reg arding Chisholm Trail’s liability under the
L ease Ag ree men t

. First, MT Fa lkin claims there is at least a fac t question about whether the
WC CBA is a for- profit partne rship subject to chapte r 152 of the business org anizations code, rathe r than an unincorpora

ted nonprofit association subject to chapte r 252. Fur thermore , MT Fa lkin a s s e rts

I n support of this a

rg ument, Chisholm Trail attache d copies of the L ease Ag ree ment, the 3 WC CBA Articles, and an aff idavit from the WC CBA’ s chair man stati n g that the WC CBA is an unincorporated nonprofit assoc iation to its motion for summary judgme nt. 5that ev en if chapte r 252 does apply , Chisholm Trail is never theless liable for the lease beca use (1) chapte r 252 did not abrog ate the common-law rule that members of an unincorporated nonprofit association are liable for the association’s actions if the members authorized or ratified th o s e actions, and (2) there is at least a fac t question about whether Chisholm Trail authorized or ratified the L ease Ag ree ment. Be cause MT Fa lkin’s arg ument that the WC CBA is a partne rship rathe r than

a nonprofit association is deter minative of which statutory provision g over n s th is d is p u te, we addre ss that issue first.
Is the WCCBA a nonprof it association or a partner ship ?
I n its third and fourth issues on appea l, MT Fa lkin asser ts that the trial court err ed in apply ing chapte r 252 of the business org anizations code in this case . Specifica lly , MT Fa lkin claims that there is a fac t issue about whether the WC CBA is a g ener al partne rship subject to chapte r 152, rathe r than a “nonprof

it association” within the meaning of chapte r 252 of the business org anizations code. See ge nerally id. §§ 152.001–.506 (West 2012) (desc ribing cre ation and liability of g ener al partne rship). There fore , acc ording to MT Fa lkin, the trial court err ed in concluding that, as a matter of law, c hapter

252 applies to the WCC BA and its members. By its own terms, chapte r 252 is the only chapte r in the business org anizations code that applies t o or gover ns nonprofit associations. Id. § 252.017. Section 252.001(2) defines

a nonprofit association as “an u n i ncorpor ated org anization, other than one cre ated by a trust, consisting of three or more members joined by mutual c onsent for a common, nonprofit purpose.”
MT Fa lkin does not dispute that the WC CBA is an unincorporated org anization that was not cre ated by a trust and consists of more than three members. Rather, MT Fa lkin arg ues that the WC CBA

6was not cre ated for a nonprofit purpose beca use th e re v enue that the WC CBA g ener ates from its members’ bingo o p er at ions is distributed to its members. MT Fa lkin asser ts that this distribution of reve nue is eff

ectively profit-shari n g b y t h e WC CBA members, reg ardle ss of the fac t that the members themse lves are nonprofit cha rities.
I n s u p p o rt o f its arg ument, MT Fa lkin contends that under chapte r 2001 of the
Texas O ccupa

tions Code—a lso know n as the Bing o Enabling Act—the WC CBA does not qua lify

as a “nonprof

it org anization” that can be licensed to conduct bingo. S ee Tex. Occ

. Code Ann. §§ 2001.002(19) (def

ining “nonprof

it org anization”), .101(a) (2) (listing require ments for “nonprof it
org anization” to be elig ible for license to opera te bingo) (West 2012). Section 2001.002(19)( b) of the occupa

tions code states that a nonprofit org anization “may not distribute any of its income to its members, office rs, or g overning body , other than for rea sonable compensa tion for s er v i ce s . . . .” Thus, acc ording to MT Fa lkin, the WC CBA’ s distributi on of proce eds to its members prec ludes it from being a nonprofit org anization that can be licensed to conduct char itable bingo, and there fore the WCC BA does not exist for a nonprofit purpose. See id. §§ 2001.002(19)( A), .101(a )(2)

. This arg ument improperly confla tes the definition of “nonprof it org anization” under chapte r 2001 of the occupa tions code w it

h th e definition of “nonprof it association” under TUUNA A. Compare id. § 2001.002(19), with Tex. Bus. Org s. Code Ann. § 252.001(2). Unlike the occupations code, there is nothing in TUUNA A that indicates a nonprofit association cannot distribute reve nue
to its members, so long as the members are “joined by mutual consent for a common , nonprofit purpose.” See T ex . Bu s . Or g s. Code § 252.001(2). I n fac t, the business org anizations code specific ally

provides that a “ nonprofit purpose” can inc lude “ope rating on a nonprofit cooper ative

7basis for the benef it of its members.” Id. § 2.002(4). Gi v en t h at the business org anizations code acknow ledg es that an association may have a nonprofit purpose even though it opera tes on a
cooper ative basis for the benef it of members, we conclude that, for the purposes of chapte r 252, an association is not automatically for- profit mere ly

beca use it distributes revenue to its m ember s. This interpre tation is consistent with the officia l comments to UUNAA , which state:
“Nonpr ofit” is not define d. A common definition—it is an association whose net g ains do not inure to the benef it of its members and which makes no distribution to its members , except on dissoluti on— does not work for all nonprofit associations

. Consumer cooper atives, for example, ma ke distributions to the ir members; but they are not for- profit orga nizations

. Those c o n s umer coopera tives not org anized under specific state or fede ral laws need the benef its of this Act.
Unif. Un i n co r

porated Nonprofit Ass’n Act § 1, cmt. 9 (ame nded 2006), 6B U.L .A. 718 (2008) (empha sis added)

. L ike the consumer cooper atives descr ibed in the above comment, the WC CBA presumably distributes proce eds from its char itable bingo opera tions to its members—a ll of which

are nonprofit org anizations with a char itable purpose. See id. The mere fact that the WC CBA distributes reve nue to its nonprofit members does not make it a for- profit org anization under chapte r 252. See Fetter , 1 1 0 S

. W

. 3 d at 687 (noting that courts presume leg islature considere d officia l comments when adopting uniform codes)

. There fore , even if MT Fa lkin is corr ect that the
WC CB A d o e s n o t s q

u a r e l y f it w it h in th e d e f

in it io n o f a “ n o n

p r o f it o r g a n iz a ti o n ” u n d e r th e o c c u

p a ti o n s code for purpose s o f l icensing for bingo opera tions, the WC CBA may never theless qualify as a “no n p ro fi t association” under the business org anizations code—f or liability purposes—if it is

8org anized for the common, nonprofit purpose of raising money for its members’ respe ctive char ities.

See Tex. Bus. Org s. Code Ann. §§ 2.002(4), 252.001( 2).

MT Fa lkin also arg ues that the WC CBA has many of the char acte ristics that would indicate the formation of a partne rship. See id. § 152.052(a) (listing fac tors that indicate cre ation of partne rship). I n particula r, MT Fa lkin notes that its summary judgme nt evidenc e shows that (1) the
WC CBA members h av e the rig ht to rec eive share s of the proce eds of the WC CBA’ s opera tions, (2) Chisholm Trail re fer

red to the WCCBA member s as par tners, (3) the members ag ree d to sha re in the WC CBA’ s losses, and (4) the members a g ree d to share the cost of operating the bi ng o hall.
See id. § 152.052(a) (1), (2), (4)( A), (5); see also Ingram v. Dee re , 288 S.W .3d 886, 899–900 (Tex. 2009) (noting that courts conside r “putative partne rs’ spee ch, wr itings, and c onduct” to dete rmine if putative partne rs intended to form partne rship). There fore , acc ording to MT Fa lkin, there is still

a fac t issue about whether the WC CBA is a partne rship s u b j ect to chapte r 152 of the business
org anizations code.

The fac t that the WC CBA exhibi ts some char acte ristics of a partne rship is common
among unincorpora

ted nonprofit associations. As the supre me cour t has noted, “[u]ni ncorpor ated association s long have been a problem for the law. They are analog ous to partne rships, and y et
not partne rships; analog ous to corpor ations, and y et not corpor ations; analog ous to joint tenanc ies, and y et not joint tenanc ies; analog ous to mut u al age n cies, and y et not mutual ag encie s.” Cox v. Thee Eve rgreen Church , 836 S.W .2d 1 6 7, 169 n.3 (Tex. 1992). Chisholm Trail’s undisputed evidenc e—including the WC CBA Articles—de monstrates that the WC CBA was fo rm ed and

9opera ted for the purpose of conducting char itable bingo to r aise reve nue for its membe r-c harities. 4

There fore , the summary -judg ment evidenc e esta blishes that the WC CBA ope rate d for a common, nonprofit purpose an d t h us is an unincorporated nonprofit association as define d by chapte r 252 of the business org anizations code. MT Falkin’s arg ument that the WC CBA has many of the char acte ristics of a partne rship—and there fore could also be classified as a partne rship—is without merit insofar as establishing that MT Fa lkin’s liability could be deter mined under chapte r 152.
See Tex. Bu s . Org s. Code Ann. § 252.017 (noting that only chapte r 252 g overns unincorporated nonprofit associations); see also § 152.051(c) (1) (noting that association is not partne rship if cre ated under statute other than chapte r 152). Be cause the WC CBA qualifies as an unincorporated nonprofit association, it is gove rned solely by chapte r 252.
On this rec ord, we cannot conclude that the trial court err ed in apply ing chapte r 252
to th e WC CB A a

n d it s me mb e r s . We o v e r

r u le M T F a lk in ’ s th ir d a

n d f o u r th a p p e ll a te is s u e s , a

n d n o w
turn to whether Chisholm Trail is never theless liable under the WC CBA’ s contra ct with MT Fa lkin.
Did TUUNAA abrogate the com m on law ?

I n its first and second issues on appea l, MT Fa lkin asser ts that even if chapte r 252 applies to the WC CBA, the trial cour t erre d in concluding that Chisholm Trail is not liable for the
WC CBA’ s brea ch of the L ease Ag ree ment. Specifica lly , MT Fa lkin arg ues that section 252.006(b) of the business org aniza t i o n s code did not abrog ate the common-law rule that a member of an

I t is not entirely clea

r from the rec ord or the briefing whether the WC CBA itself conducts 4 bingo opera tions or t he W C C BA members conduct bi ng o opera tions and then pool their revenue. This distinction is irrele vant, however, because the record sti ll s u pports the fact that the W CCBA serve s the common nonprofit purpose of ra ising money for its member- char ities. 10uninco rp o ra t ed nonprofit association could be liable for the association’s actions if the member

authorized or ratified those actions. Thus, acc ording to MT Fa lkin, the trial court err ed in g ranting
summary judgme nt in favor of Chisholm Trail beca use there is a fac t issue about whether Chisholm Trail authorized or ratified the L ease Ag ree ment. Whether TUUNA A abrog ated the common-law rule of me mber liability

is a question of law tha t we re view de novo. Prior to the adoption of TUUNA A, unincorporated nonprofit associations “we re not considere d separ ate leg al entities and had no exis tence apar t from their individual members.” Cox , 5
836 S.W .2d at 169–70. Be cause an unincorporated associati on had no separ ate leg al identity , an individual was not persona lly liable for the association’s debts “m erely beca use of his status as a member or office r of the association.” Karl Rove & Co. v. Thornburgh , 39 F.3d 1273, 1284 (5th Cir. 1994); see also Juhl v. A i r i n g t o n , 936 S.W .2d 640, 642–43 (Tex. 1996) (apply ing pre- TUUNA A

common law wher e underly ing action commence d befor e TUUNA A’s adoption); Cox , 836 S.W .2d
at 170. Rather, the common law trea ted a member of an unincorporated nonprofit association
“as though he wer e a principal and the association wer e his [put ative] ag ent.” See Karl Rove & Co. , 3 9 F. 3 d at 1285. There fore , althoug h members of a nonprofit association wer e not automatically

This g ener al principle was chang ing, to a cer tain extent, in the y ear s leading up to 5 TUUNA A’s adoption. See Cox v. Thee Eve rgreen Church , 836 S. W

. 2d 167, 171 (Tex. 1992) (noting that by s tatute, members of unincorporated association could sue or be sued under association’s name, g iving association some char acte ristics of lega l en t ity ). Howeve r, g iven that members of unincorpora

ted associations could still be liable for the association’s actions, it is clea r that the common law did not trea t unincorpora ted associations as completely separ ate leg al entities. See Karl Rove & Co. v. Thornburgh , 39 F.3d 1273, 1285 (5th Cir. 1994) (noting disconnec t betwee n entity theory for unincorporated association and con t i n u ing common-law rule that members are liable if they ratify association’s actions); 20 Robert W. Hamilton et al., Texas Practice Series: Business Organizations § 25.8 (3d ed. 2011)

. 11liable for an association’s actions, a member would be vicar iously liable if the member authorized

or ratified those actions. See J uhl , 936 S.W .2d at 643 (c oncluding protestors we re not vica riously liable for injury cause d by one protestor mere ly beca use they participa ted in same protest); s ee also Karl Rove & Co. , 39 F.3d at 1287–88 (conc luding senatoria l candida te was persona lly l i able for
contra cts of his campa ign committee when he assented to those contra cts). These case s preda ted the leg islature’s a doption of TUUNAA

.

Under TUUNA A, a “nonprof it association is a leg al entity separ ate from its members for the purposes of deter

mining and enfor cing rig hts, duties, and liabiliti es in contra ct and tort.” Tex.
Bus. Org s. Code Ann. § 252.006(a)

. “A person is not liable for a brea ch of a nonprofit association’s
contra ct

. . . mere ly beca

use the person is a member, is authorized to participa te in the manag ement of t he affair s of t he nonprofit association, o r i s a p er s o n considere d as a member by the nonprofit association.” Id. § 252.006(b).

As t h e officia l comments to UUNAA ’s limit ed-liability provision make clea r, “[b] eca use a nonprofit association is made a separ ate leg al entity , its members are not co-pr incipals. Consequently they are not liable on the contra cts or for torts for which the association is liab l e. Subsection (b) specifie s that result with respe ct to contra cts.” Unif. Unincorporated Nonprofit Ass’n
Act § 6, cmt. 3 (ame nded 2006), 6B U.L .A. 729 (2008); see a l s o § 1 , cmt. 1 (ame nded 2006)
6B U.L .A. 716 (2008) (“This broad definition of member ensure s that the insulation fr om liability is provided in all case s in which the common law might have imposed liability on a person, simply beca use the person was a member.” ). There fore , althoug h both TUUNA A a n d th e c ommon-law state that a member of a nonprofit association is not liable for the association’s contra cts mere ly beca use

12he is a member, “mer el y ” means something substantially differ ent under TUUNA A. Under the

common law, a person could not be li able merely as a member of a nonprofit associati o n beca use the association was not a d i s tinct leg al entity , and thus there was no means to impute the association’s actions to the member unless the member ratified those actions. See Cox , 836 S.W .2d
at 169–70. By contra st, a person or entity is not li able unde r TUUN AA mere ly as a member of an association beca

use the association is a distinct entity , and thus its members and ag ents are not liable under any theory of vicar ious liability

. See Unif. Unincorporated Nonprofit Ass’n Act § 6, cmt. 6, 6
6B U.L .A. 729 (explaining that within subsection (b), “mer ely ” means person cannot be vicar iously liable as an association member, bu t m ay b e p er sonally liable i f person g uara nteed contrac t, wer e liable under

other a g ency

law, or c ourt “pier ces the veil” of a ssociation).
I t appea rs that only two courts have addre ssed this issue, but both of those courts have

re ached our same conclusion—UUN AA did abrog ate the common law. See Izen v. Sj o s t r o m , 7
No. 14-06-00142- CV, 2007 WL 968841, at *5 (Tex. App.—Houston [14t h Dist.] Apr. 3, 2007, no pet.) (mem. op.); Mohr v. Kelley , 8 P.3d 543, 545–4 6 (C o l o . App. 2000). I n Izen , the trial court

MT Fa lkin cites to oral comments made by leg islators during TUUNA A’s adoption which 6 indicate that cer

tain leg islators did not believe TUUNA A would chang e the common law. See The Texas Uniform Unincorpor ated Nonprof i t Associations Act: Hea

ring s on Tex. H.B

. 166 Be fore the House Comm

. On Bu s . & I ndus., 74th L eg ., R.S. (Mar

. 7, 1995) (statement of R epre sentative Sy lvester Turner ) (tape available from Offi c e o f th e H o u s e Co mmittee Coordinator). Howeve r, these comments indicate either that the leg islators misunderstood wh at the common law conce rning nonprofit associations was or misunderstood when a person could be liable for the actions of another

. I n any event, these comments are wholly inconsistent with the lang u ag e of TUUNA A and the Official Comments to UUNAA

. See Tex. Bus. Org s. Code Ann. §§ 252.001–.017 (W es t 2 0 1 2 ); Unif. Unincorporated Nonprofit Ass ’n Act § 6, cmt. 3 (ame nded 2006), 6B U.L .A. 729 (2008). The dear th of case law may be attributable to th e fa ct t h at only twelve states and the 7 District of Columbia have a dopted UUNA A. 13awa

rded summary judgme nt in favor of a former employ ee of a leg al defe nse fund who sued the fund and one of its trustees for unpaid wag es. 2007 WL 968841, at *1. The former employ ee alleg ed that the trustee was a member of the defe nse fund and thus was liable for the fund’s “contr acts beca use all members of an unincorporated association are liable for its contra cts.” Id. at *5. Our sister court

reve rsed the trial court’s summary judgme nt in favor of the former employ ee, holding that “[t] he

rec ently passed TUUNA A chang es the common law rule in stating that a person is not liable for the
contra cts of the nonprofit association mere ly beca use that person is a member or a person authorized to participate in the manag ement of the association’s a ffa irs.” Id. 8
Simi larly in Mohr , a Colorado appellate court addre ssed whether a candida te could be liable for the employ

ment contra cts of his campa ign committee. 8 P.3d at 544–45. I n interpre ting Colorado’s version of UUNAA , the court noted th at UU NA A “substantially chang es the law with respe ct to unincorpora ted no n -p rofit associations” by making them separ ate leg al entities
“more in the nature of corpor ations, limit ed partne rships, or limit ed liability companies.” Id. at 545. There fore , rely i n g o n t he same officia l comments to UUNAA discussed above, the Colorado appellate court concluded that the candidate could not be li able for hi s campa ign’ s contra cts even though he was a member of the campa ign, manag ed the campa ign, and neg otiated the employ ment
contra cts at issue. Compare id. at 545–46, with Karl Rove & Co. , 39 F.3d at 1284 (conc luding that under pre- TUUNA A Texas common law, candida te liable for campa ign’ s contra cts when candida te authorized contra cts).

Although the memorandum opinion did not analy ze how TUUNA A chang ed the common 8 law, the opinion can be rea d as further support for this Court’s interpre tation. Izen v. Sjostrom , No. 14-06-00142- CV, 2007 WL 968841, at *5 (Tex. App.—Houston [14t h Dist.] Apr. 3, 2007, no pet.) (mem. op.). 14Fur th ermore, our interpre tation is consistent with that of commentators who have analy zed member liability under UUNAA

. See 20 Robert W. Hamilton et al., Texas Practice Series:
Business Organizations § 25.8 (3d ed. 2011); Eliz abeth S. Miller, Doctoring the Law of Nonprofit
A s s o c ia ti o n s wi th a B a n d

- a id o r a B o d

y Ca s t: A Lo o k a t th e 1 9 9 6 a n d 2 0 0 8 U n if o r m U n in c o r p o r a te d Nonprofit Association Acts , 38 Wm. Mitchell L

. Rev. 852, 865–66 (2012). As one author explained, “althoug h [Tex as’s common-law] rule stopped short of imposing liability solely on the basis of one’s
status as a member, it appea rs to be inconsistent with the entity approa ch adopted by the TUUNA A and presumably is no longe r the law.” 20 Robert W. Hamilton et al., Texas Practice Series: Business Organizations § 25.8.

There fore , while a member of a nonprofit association who ratified the association’s actions could be liable under the common law, such liability is not appropr iate under T UU NAA.
We conclude that TUUNA A abrog ated the common law and, under section 252.006, Chisholm Trail cannot be liable for the actions of the WC CBA mer ely beca use Chisholm Trail alleg edly assented
to or ratified the L ease Ag ree ment. There fore , we need not rea ch MT Fa lkin’s arg ument that there is a fac t issue about whether Chisholm Trail authorized or ratified the L ease Ag ree ment. The trial 9

MT Fa lkin contends that the WC CBA Articles, commun i ca t i ons from Chisholm Trail, 9 and signe d acknow ledg ments by other WC CBA members demonstrate that the WC CBA members intended to be jointly and sever ally liable for the WC CBA’ s opera tions, particula

rly with reg ard to the L ease Ag ree ment. This appea rs to be parole evidenc e of the parties’ intent prior to enter ing into the written c ontrac t, which a c ourt would g ener ally not consider unless the c ontrac t is ambiguous. See Kendrioski v. Saunders , 191 S.W .3d 395, 405 (Tex. App.—Austin 2 0 0 6 , n o pet.) (discussing p ar o l e evidenc e conce rning unambig uous written surety ag ree ment). MT Fa lkin does not assert that the L ease Ag ree ment is ambig uous, and there is n o t h i n g within the four corne rs of the L ease A g r e e me n t to s u g g e s t th a

t th e WC CB A me mb e r s w e r e li a b le f o r th e le a s e . I

d

. ( n o ti n g p a

r o le e v id e n c e cannot “cr eate an ambig uity in an otherwise unambig uous ag ree ment”). There fore , neither the trial court nor this Court is able to consider this evidence to alter the te rms of the lea se. 15court did not err in g ranting Chisholm Trail summary judgme nt on t h is basis. We overr ule MT
Fa lkin’s first and sec ond appellate issues. 1 0

CONCLUSION We affir m the trial court’ s final summary judgme nt in favor of

Chisholm Trail.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Scott K. Field, Just ice
Be fore J ustices Pury ear , Pemberton, and F ield Affir med Filed: May

2, 2013

Having conclude d that Chisholm Trail is entitled to summar y judgme nt beca

use it is not 1 0 li a b le f o r th e d e b ts o f th e WC CB A , w e n e e d n o t d e te r mi n e w h e th e r r e s ju d ic a

ta a ls o b a r s M T F a lk in ’ s claims ag ainst Chisholm Trail

. S ee F M P r ops. Operating Co. v. City of Austin , 22 S.W .3d 868, 872–73 (Tex. 2000) (noting appellate court will aff irm trial court’s summary -judg ment ruling if any summary judgme nt g round supports it); see also Tex. R. App. P. 47.1 (re quiring appellate courts to hand down opinions that are as bri ef as possible while addre ssing those issues nece ssary to final dispositi on of appe al). 16