      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-02-00606-CV



                            Gregg Cooper Waddill, IV, Appellant

                                                v.

                     Phi Gamma Delta Fraternity Lambda Tau Chapter
                            Texas Tech University, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
          NO. 99-09113-E, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING



                                         OPINION


               Appellant Gregg Cooper Waddill, IV, sued appellee Phi Gamma Delta Fraternity

Lambda Tau Chapter Texas Tech University (“the Fraternity”), among others,1 for defamation and

hazing. The district court granted summary judgment in favor of the Fraternity. On appeal, Waddill

brings a single issue challenging the summary judgment. We will affirm the judgment.




       1
           Waddill originally brought suit against Phi Gamma Delta International Fraternity (the
international fraternity), Phi Gamma Delta Fraternity Lambda Tau Chapter Texas Tech University
(the Fraternity), Ryan Frye, Bill Burkhalter, Nathan Lowe, and Charlie Purdue in cause number 99-
09113. On March 19, 2002, the district court granted the international fraternity’s motion for
severance, reassigning the severed claims to cause number 99-09113-B. On the same day that the
district court granted the Fraternity’s motion for summary judgment, the court granted the
Fraternity’s motion for severance, reassigning the severed claims to cause number 99-09113-E. The
claims against the individuals remained in cause number 99-09113. This appeal stems only from
the district court’s granting of the Fraternity’s motion for summary judgment in cause number 99-
09113-E.
                                         BACKGROUND

               In the fall of 1997, Waddill pledged the Fraternity while attending Texas Tech

University, in Lubbock. At some point during his pledgeship, a person or persons unrelated to the

Fraternity accused Waddill of having engaged in sexual misconduct with an Austin woman. Waddill

admits that he was accused of sexual assault by a particular complainant. Although it is undisputed

that the allegations were made, Waddill alleges that the allegations were false and made only as part

of a scam to extort money from him. According to Waddill’s petition, “The District Attorney of

Travis County was immediately informed of the scheme against Cooper Waddill, and the District

Attorney exonerated him of this defamatory criminal accusation.”2 Waddill advised members of the

Fraternity that the allegations had been made but that they were false. Ultimately, the Fraternity

revoked Waddill’s invitation to become a member. In the fall of 1998, Waddill enrolled at The

University of Texas at Austin and attempted to pledge a fraternity, but was unsuccessful.

               According to deposition testimony, Justin Davidson, a member of the Delta Tau Delta

fraternity at The University of Texas, met Waddill at a rush party in Austin during the fall of 1998.

Through conversation, Davidson learned that Waddill had pledged with the Fraternity in Lubbock

and that Waddill knew Charlie Perdue, a member of the Fraternity. Davidson and Perdue had

attended high school together and were friends. According to Perdue’s deposition, Davidson called




       2
           The Fraternity disputes this fact on the ground that there has been no independent
verification of Waddill’s exoneration. The record contains no evidence to support Waddill’s
assertion.

                                                 2
Perdue and asked him whether he remembered Waddill and inquired why Waddill was not “a Fiji

up at Tech.” Perdue replied that he did not know but that he would make inquiries. Perdue spoke

briefly with Nathan Lowe, the Fraternity chapter historian, who told Perdue that he had heard people

saying that Waddill did not get along well with women. Lowe advised Perdue: “Tell your friend

in Austin not to walk away but run away, [Waddill] is nothing but trouble.” Perdue relayed this

information to Davidson. Waddill admits that there were rumors about him in Austin and Lubbock

in the spring of 1997 before any contact with the Fraternity and that some people in Austin and

Lubbock knew of the sexual allegations.

                On August 9, 1999, Waddill filed this lawsuit alleging that the Fraternity negligently

conveyed defamatory statements about him to third persons and as a result he suffered injury to his

reputation. Defamation to a private individual occurs when a defendant negligently communicates

or publishes a false statement to a third person capable of understanding the defamatory meaning of

the statement, and as a result there is an injury to the person’s reputation. See WFAA-TV, Inc. v.

McLemore, 978 S.W.2d 568, 571 (Tex. 1998). Slander is a defamatory statement published orally.

Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995). In Waddill’s third

amended petition, filed in January 2002, he added a hazing claim against the Fraternity and its

members. See Tex. Educ. Code Ann. § 37.152 (West 1996). According to the petition, the

Fraternity singled out Waddill for increased hazing because of the allegations against him. The

Fraternity allegedly “blackballed” him to force him from the Fraternity.

                The Fraternity filed a no-evidence motion seeking summary judgment on the basis

that (1) there is no evidence of the Fraternity’s duty that supports negligence; (2) there is no evidence



                                                   3
of ratification to establish vicarious liability of the Fraternity; and (3) the claim of hazing is barred

by limitations. Waddill responded to the Fraternity’s motion by offering deposition testimony

regarding the conversations between the Fraternity’s members and individuals in Austin. The district

court granted the Fraternity’s motion. This appeal followed.


                                    STANDARD OF REVIEW

                A party seeking a no-evidence summary judgment must assert that no evidence exists

as to one or more of the essential elements of the nonmovant’s claims on which it would have the

burden of proof at trial. Holmstrom v. Lee, 26 S.W.3d 526, 530 (Tex. App.—Austin 2000, no pet.).

A no-evidence summary judgment is properly granted if the nonmovant fails to bring forth more than

a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element

of the nonmovant’s claim on which the nonmovant would have the burden of proof at trial. See Tex.

R. Civ. P. 166a(i); Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). If the

evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to

differ in their conclusions, then more than a scintilla of evidence exists. Havner, 953 S.W.2d at 711.

Less than a scintilla of evidence exists when the evidence is “so weak as to do no more than create

a mere surmise or suspicion” of fact, and the legal effect is that there is no evidence. Jackson v.

Fiesta Mart, 979 S.W.2d 68, 70 (Tex. App.—Austin 1998, no pet.). A no-evidence summary

judgment is essentially a directed verdict granted before trial, to which we apply a legal sufficiency

standard of review. Id.




                                                   4
                                            DISCUSSION

Duty of the Fraternity

                A cause of action for negligence consists of three elements: (1) the existence of a

legal duty owed to another; (2) a breach of that duty; and (3) damages proximately resulting from

the breach. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990); El Chico

Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987). To establish liability, a plaintiff must prove the

existence and violation of a duty owed to him by the defendant. El Chico, 732 S.W.2d at 311. It is

fundamental that the existence of a legally cognizable duty is a prerequisite to all tort liability. Graff

v. Beard, 858 S.W.2d 918, 919 (Tex. 1993). The existence of duty is a question of law for the court

to decide from the facts surrounding the occurrence in question. Greater Houston Transp., 801

S.W.2d at 525. The district court failed to find any duty owed by the Fraternity to Waddill.

                Generally, a person is under no legal duty to control the conduct of another, even if

the person has the ability to do so, unless there exists a special relationship between them. Triplex

Communications, Inc. v. Riley, 900 S.W.2d 716, 720 (Tex. 1995); Otis Eng’g Corp. v. Clark, 668

S.W.2d 307, 309 (Tex. 1983). We have been cited to no Texas case that has imposed a duty on a

fraternal organization to exercise reasonable ordinary care to protect a nonmember third party from

allegedly defamatory statements made by the fraternity’s members to other third persons. The

Fraternity asserts that, because it is an unincorporated association and because there is no evidence

that it authorized or ratified a few of its members’ decision to reveal the allegedly defamatory

allegations, it owes no duty to Waddill as a matter of law and therefore cannot be held vicariously

liable. Waddill argues that the Fraternity owed a legal duty to him under the theory articulated by



                                                    5
the supreme court in Texam Oil Corp. v. Poyner: “An action is sustainable against a corporation for

defamation by its agent, if such defamation is referable to the duty owing by the agent to the

corporation, and was made while in the discharge of that duty. Neither express authorization nor

subsequent ratification is necessary to establish liability.” 436 S.W.2d 129, 130 (Tex. 1968); see

also Wal-Mart Stores, Inc. v. Lane, 31 S.W.3d 282, 288 (Tex. App.—Corpus Christi 2000, pet.

denied); Hooper v. Pitney Bowes, Inc., 895 S.W.2d 773, 776-77 (Tex. App.—Texarkana 1995, writ

denied). Thus, Waddill argues, a duty exists on the part of the Fraternity because the deposition

testimony of some of the Fraternity’s members establishes that when they communicated the

allegedly defamatory statements to members of other fraternities in Austin, they acted in the course

and scope of their membership. We disagree.

               A corporation—whether for-profit or not-for-profit—is a distinct legal entity which

comes into existence by charter from the state. See, e.g., Tex. Bus. Corp. Act Ann. arts. 3.01-.06

(West 2003); Texas Non-Profit Corporation Act, Tex. Rev. Civ. Stat. Ann. art. 1396, §§ 3.01-.05

(West 2003). On appeal, Waddill contends that the “Fraternity clearly operates under a corporate

form with a corporate Constitution, Acts and By-Laws that specifically state that the members are

subject to the direct control and supervision of the Fraternity.” Waddill’s summary judgment

evidence included exhibits of the Constitution of the Phi Gamma Delta International Fraternity

(Exhibit 14), the By-Laws of the Phi Gamma Delta International Fraternity (Exhibit 15), and

Portions of the By-Laws that have been produced from the Phi Gamma Delta Lambda Tau Chapter

(Exhibit 16); however, there is no evidence in the record of a corporate charter. The Fraternity’s

summary judgment evidence includes the affidavit of George H. Nelson, an attorney and current



                                                 6
graduate advisor to the Fraternity, who averred that the “Lambda Tau Chapter is an unincorporated

association operating under a charter granted by the The International Fraternity of Phi Gamma Delta

. . .” and that the “Chapter has never been incorporated under the laws of any state.” Thus, without

summary judgment evidence of filed articles of incorporation or a corporate charter, Waddill’s

exhibits give rise to no more than a mere suspicion that the Fraternity is a corporation. Waddill

cannot, therefore, rely on Poyner for its theory of vicarious liability.3

               “An unincorporated association is a voluntary group of persons, without a charter,

formed by a mutual consent for the purpose of promoting a common enterprise or prosecuting a

common objective.” Cox v. Thee Evergreen Church, 836 S.W.2d 167, 169 (Tex. 1992). Although

Waddill disputes that the Fraternity is in fact an unincorporated association, he offers no evidence

that the Fraternity does not meet the above definition of an unincorporated association. We have

already concluded that there is no evidence to support Waddill’s argument that the Fraternity is a

corporation, and the fact that the Fraternity may have a chapter charter from the international

fraternity,4 a constitution, and by-laws does not prevent it from being an unincorporated association.

See, e.g., National Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 85 (Tex. 1999) (describing

NCAA—which promulgates rules and regulations, and operates with by-laws—as “voluntary,

unincorporated association”).




       3
         Waddill does not argue that Texas courts have extended the rule in Poyner to find
unincorporated associations liable for the defamatory conduct of its members or agents.
       4
          The phrase “without a charter” in the supreme court’s definition of an unincorporated
association clearly refers to a corporate charter from the state. See Cox v. Thee Evergreen Church,
836 S.W.2d 167, 169 (Tex. 1992).

                                                   7
               The members of an unincorporated association may be sued, “as to third parties,

under the association’s assumed name as a legal entity.” Cox, 836 S.W.2d at 171. However, the

First Amendment to the United States Constitution protects the right of association and precludes

imposing liability on a national association for the actions of one or more members of a local chapter

without a finding that the national association participated in, authorized, or ratified the conduct.

See Juhl v. Airington, 936 S.W.2d 640, 642 (Tex. 1996) (citing NAACP v. Claiborne Hardware Co.,

458 U.S. 886, 931-32 (1982)). Furthermore, an unincorporated association, as a principal, is only

responsible for the wrongful conduct of its agent “where there is collusion with the agent, active

participation in the wrongful act, or the same is otherwise authorized or ratified.” United Ass’n of

Journeymen and Apprentices of the Plumbing and Pipefitting Indus. v. Borden, 328 S.W.2d 739, 744

(Tex. 1959). Thus, where the evidence suggests that only one or two members of the Fraternity

recounted the allegedly defamatory allegations, the Fraternity’s liability must be analyzed “in terms

of the specific actions undertaken, authorized or ratified” by the overall membership of the

Fraternity. See Juhl, 936 S.W.2d at 643; Gonzales v. American Postal Workers Union, AFL-CIO,

948 S.W.2d 794, 798 (Tex. App.—San Antonio 1997, pet. denied).

               The district court ruled that Waddill failed to present any evidence by which the

Fraternity could be found to have owed a duty to him in its status as an unincorporated association.

We agree. Waddill presented no evidence that Perdue obtained information about Waddill for

purposes of his membership in the Fraternity; Perdue testified that it was “no big deal” to him and

that he spoke to Lowe merely for the sake of answering his friend’s question. Although Lowe was

chapter historian, there is no evidence that when he spoke to Perdue he was acting in that capacity



                                                  8
or was authorized to make the comments about Waddill in fulfillment of his official duties. There

is no evidence that any other members of the Fraternity colluded with Lowe when he made the

comments, or that other members of the Fraternity actively participated in spreading the allegations

to the University of Texas fraternity community. See Gonzales, 948 S.W.2d at 798 (trial court

correctly granted summary judgment against plaintiff in suit against unincorporated association

where summary judgment evidence established that association did not collude with member or

actively participate in writing or publishing allegedly defamatory letter). The summary judgment

evidence conclusively establishes that the allegations concerning Waddill were conveyed in a phone

conversation between friends without the Fraternity’s authorization or ratification.

               Waddill argues that the Fraternity can nonetheless be vicariously liable for the

allegedly defamatory statements of its members on the theory that by “creating and implementing

a policy calculated to prohibit the very conduct at issue in this case, the Fraternity clearly assumed

a legal duty.” For support, Waddill cites Otis Engineering Corp. v. Clark for the proposition: “One

who voluntarily enters an affirmative course of action affecting the interests of another is regarded

as assuming a duty to act and must do so with reasonable care.” 668 S.W.2d 307, 309 (Tex. 1983)

(citing Colonial Savings Ass’n v. Taylor, 544 S.W.2d 116 (Tex. 1976)). Waddill presented his own

deposition testimony, in which he stated that the Fraternity has “a rule or something that they live

by or a code or something where, when a member is blackballed, they do not go into the extent of

that information on why they are blackballed to members and persons outside of the fraternity.”

Waddill also presented as evidence a letter from the Fraternity’s chapter advisor stating that the

reasons for terminating a pledge relationship are confidential.



                                                  9
                Waddill reads Otis Engineering too broadly. There, in a wrongful death action, the

supreme court extended the assumption of duty rule to apply to a situation where an employer sent

an employee home because he was too intoxicated to work. Otis Eng’g Corp., 668 S.W.2d at 308-

09. Upon leaving work, the employee had a fatal accident with other motorists. Id. The court held

that “when, because of an employee’s incapacity, an employer exercised control over the employee,

the employer has a duty to take such action as a reasonably prudent employer under the same or

similar circumstances would take to prevent the employee from causing an unreasonable risk of harm

to others.”   Id. at 311.     The holding was specific to the employer-employee relationship;

nevertheless, to the extent that the duty could be analogized to the Fraternity’s exercise of control

over its members, the record lacks any evidence that the members pose a recognizable threat of harm

to third persons. See id.5


        5
           Waddill also cites us to an unpublished memorandum opinion by the Delaware Superior
Court for the proposition that a fraternity can be vicariously liable for its members’ actions because
it has a duty to supervise and control its members. See Marshall v. University of Del., No. 82C-OC-
10 (Del. Super. Ct. Oct. 8, 1986) (not designated for publication), 1986 Del. Super. LEXIS 1374.

           In that case, a group of fraternity members attended a party at another fraternity house,
where they were involved in a fight. Id. at *2-3. The plaintiff was injured during the course of the
fight. Id. The fraternity moved for summary judgment on the grounds that it was an unincorporated
fraternal association and owed no duty to the plaintiff. Id. The court denied the fraternity’s motion,
finding that in attending the party, the fraternity members were “within the scope of an agency
relationship with” the fraternity because there was evidence “that one of the purposes of a fraternal
association is to develop ties of friendship and fellowship among its members.” Id. at *9-10.

           We find the Delaware case to be factually distinguishable. Here, there is no evidence to
suggest that in revealing the allegedly defamatory allegations Lowe or Perdue acted within the scope
of an agency relationship with the Fraternity. Furthermore, the Marshall case is unpersuasive
authority insofar as it has no appellate history and does not explicitly address whether the fraternity
authorized or ratified the conduct leading to the plaintiff’s injuries, which is the test under Texas law.


                                                   10
                Furthermore, Waddill failed to present evidence controverting the affidavit of Nelson,

in which he avers that “the secret vote provisions of the Constitution and By-Laws . . . are not in

place or designed for the protection of individual pledges who may be de-pledged, but rather are for

the protection of the autonomous voting rights of individual initiated members of the chapter and

. . . to maintain peace in the chapter by prohibiting disclosure of a secret vote or inquiry or question

about a brother’s vote on the matter.” Waddill presented no evidence that the Fraternity assumed

a legally cognizable duty by affirmatively choosing to keep secret its members’ votes. Although the

Fraternity may have the authority to discipline members who violate the policy, we doubt that such

a violation is actionable at law by a third person suing the Fraternity unless there is evidence that the

Fraternity enacted the policy to protect the interests of such an individual. The district court thus

correctly granted summary judgment against Waddill in his action against the Fraternity.


Limitations

                In its order granting the Fraternity’s summary judgment motion, the district court

dismissed Waddill’s hazing claim on the ground it was barred by the two-year statute of limitations.

See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (West 2002). Assuming that Waddill was the

victim of hazing by the Fraternity, any cause of action would have accrued no later than the winter

of 1997. The statute of limitations thus expired sometime in the winter of 1999. Waddill did not

amend his petition to include a hazing claim until January 2002. According to Waddill, his hazing

claim is not barred by limitations because it “relates back” to the date of the original pleading for

slander. Under the civil practice and remedies code:




                                                   11
        If a filed pleading relates to a cause of action . . . that is not subject to a plea of
        limitation when the pleading is filed, a subsequent amendment or supplement to the
        pleading that changes the facts or grounds of liability . . . is not subject to a plea of
        limitation unless the amendment or supplement is wholly based on a new, distinct,
        or different transaction or occurrence.


Id. § 16.068 (West 1997). Waddill contends that the hazing he experienced in the fall of 1997 and

the defamation alleged in the fall of 1998 arose from the same transaction: his negative experience

with the Fraternity, in which the Fraternity and its members sought to humiliate him because of the

sexual allegations made against him.

                Waddill cites Knesek v. Witte, which held that the phrase “transaction or occurrence”

is “not limited to one point in time, but may embrace a course of dealing between the parties.” 754

S.W.2d 814, 816 (Tex. App.—Houston [1st Dist.] 1988, writ denied). In that case, however, the

plaintiffs’ later filing arose out of the same alleged execution of a contractual will that gave rise to

their original suit for declaratory judgment. Id. The amendments merely added additional facts and

a suit to impress a constructive trust as an additional ground for recovery of real property. Id.

Neither Knesek nor any of the other cases cited by Waddill employ the relation-back doctrine for the

purpose that he proposes. See, e.g., Ex Parte Goad, 690 S.W.2d 894, 896-97 (Tex. 1985) (where

original complaint based on failure to pay court ordered division of retirement benefits, amended

petition that increased amounts due did not allege wholly new and distinct transaction); Duran v.

Furr’s Supermarkets, Inc., 921 S.W.2d 778, 791 (Tex. App.—El Paso 1996, writ denied) (amended

claim did not allege wholly new, distinct, or different transaction because earlier claims of negligent

hiring and assault and battery and later claim of false imprisonment arose out of same incident

between plaintiff and defendant’s employee); Milestone Properties, Inc. v. Federated Metals Corp.,

                                                   12
867 S.W.2d 113, 117 (Tex. App.—Austin 1993, no writ) (original petition alleging misrepresentation

sufficient to apprize defendants of indemnity claim).

               Essentially, Waddill seeks to relate his hazing claim, which arose during his

pledgeship, forward in time to conduct after his departure that forms the basis of his defamation and

negligence claims. The relation-back doctrine cannot be used in such a fashion. See Roberts v. Lain,

32 S.W.3d 264, 268 n.2 (Tex. App.—San Antonio 2000, no pet.) (relation-back doctrine not

applicable where conduct forming basis of intentional infliction of emotional stress claim began in

1980s and claim for negligent exposure based on activity that occurred in 1970s). The activity that

forms the basis of Waddill’s defamation and negligence claims did not occur during his pledgeship

in 1997, notwithstanding the fact that members of the Fraternity allegedly learned of the sexual-

misconduct allegations against Waddill at that time. If the transaction or occurrence forming the

basis of his original petition was, as Waddill phrases it, “his involvement with the Fraternity,” then

hypothetically Waddill could use the relation-back doctrine to amend his petition to add a host of

other claims having nothing to do with the injury he complains of in his original petition.

               The alleged hazing incidents preceded by nearly a year the events specifically giving

rise to the original petition; they occurred while Waddill was a student at Texas Tech University and

the Fraternity’s pledge. The acts giving rise to the defamation claim occurred in conversations the

next year while Waddill was a student at The University of Texas at Austin. Thus, we conclude that

the hazing claim is “wholly based on a new, distinct, or different transaction or occurrence.” Tex.

Civ. Prac. & Rem. Code Ann. § 16.003(a). Because Waddill would have had no claim for

defamation and negligence until the occurrence of the communications between the members of the



                                                 13
Fraternity and the individuals in Austin, Waddill must show that his hazing claim is based on this

activity to avail himself of section 16.068 of the civil practice and remedies code. This he cannot

do. We hold that the district court properly granted summary judgment against Waddill’s hazing

claim based on limitations.


                                         CONCLUSION

                For the reasons above, we overrule Waddill’s issue on appeal. Accordingly, we

affirm the district court’s summary judgment.




                                              __________________________________________

                                              Marilyn Aboussie, Justice

Before Justices B. A. Smith, Puryear and Aboussie*

Affirmed

Filed: July 24, 2003




*
    Before Marilyn Aboussie, Chief Justice (retired), Third Court of Appeals, sitting by assignment.
    See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).




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