Riss v. Angel

Sanders, J.

(concurring in part, dissenting in part) — I concur with the majority except insofar as it remands for determination of which individual association members shall be jointly and severally liable. I would affirm the Court of Appeals on this issue as well, based upon the majority’s insightful pronouncement that "[a]s the Court of Appeals correctly held, common law members of unincorporated associations have been held jointly and severally liable for all debts of the association. Nolan v. McNamee, 82 Wash. 585, 144 P. 904 (1914).” Majority at 634. While the majority does not overrule Nolan, it refuses to follow it, relying instead upon authority from other jurisdictions. The holding of the majority on this point is therefore contrary to law because it declines to follow Nolan, which, under the rule of stare decisis, is binding until overruled. Hamilton v. Department of Labor & Indus., 111 Wn.2d 569, 571, 761 P.2d 618 (1988). Moreover, the Nolan rule makes good sense. This association can take action only collectively. A single member can neither require the association to act nor restrain it therefrom. The members of the association act in concert in all matters, and the individual acts of component association members are simply irrelevant for the purpose of establishing association liability, which, as a matter of law, is also the liability of every constituent member. Accord Burks v. Weast, 67 Cal. App. 745, 228 P. 541, 543 (1924) (”[W]here parties are associated and conduct business as an unincorporated association, they are regarded as partners, so far as affects the question of liability for the debts . . . incurred by the association.”).

In place of the clear rule and the reasons which support it, the majority promotes chaos by inviting a factual inquiry into the individual actions, or inactions, of every association member. By consensually entering into the association, however, each association member is bound, by his own previous consent, to all legal rights and liabilities which may flow to him by virtue of association action. If individual members of the association feel aggrieved by the unfair imposition of liability, their remedy is against their fellow association members and/or controlling members, although it is not a defense to the lawful claims of third persons injured by concerted association activity. Burks, 228 P. at 543. Therefore, I dissent to this portion of the majority opinion and would simply affirm the Court of Appeals.

Durham, C.J., and Guy, J., concur with Sanders, J.