Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, and
Keenan, JJ., and Whiting, Senior Justice
GENEVIEVE ASCH, ET AL.
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 941940 January 12, 1996
FRIENDS OF THE COMMUNITY OF
MOUNT VERNON YACHT CLUB, ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
F. Bruce Bach, Judge
The Friends of the Community of Mount Vernon Yacht Club, a
Virginia unincorporated association, and James G. Hamrick, Harvey
Silver, Edward S. Pearsall, Jerome P. Skelly, Donald L. Waller,
and Susan Weigert, filed their bill of complaint against the
Mount Vernon Yacht Club, Inc., a Virginia corporation, and 55
persons, including Genevieve Asch. The respondents are members
of the Yacht Club. The complainants sought certain injunctive
relief and a declaration that they are members of the Yacht Club,
and that they are entitled to exercise certain voting privileges.
The trial court granted the requested declaration, and we
awarded Asch and certain other respondents an appeal.
The respondents did not join the Yacht Club as a party in
this appeal. Some of the complainants filed a motion to dismiss
the respondents' appeal, asserting that the Yacht Club is an
indispensable party. The respondents assert that they are
entitled to maintain this appeal because, inter alia, their
notice of appeal informed all the litigants below, including the
Yacht Club, "that the litigation was not ended and that appeal
was in progress."
We have defined "necessary parties" broadly:
"Where an individual is in the actual enjoyment of the
subject matter, or has an interest in it, either in
possession or expectancy, which is likely either to be
defeated or diminished by the plaintiff's claim, in
such case he has an immediate interest in resisting the
demand, and all persons who have such immediate
interests are necessary parties to the suit."
Raney v. Four Thirty Seven Land Co., 233 Va. 513, 519-20, 357
S.E.2d 733, 736 (1987) (quoting Gaddess v. Norris, 102 Va. 625,
630, 46 S.E. 905, 907 (1904)); accord Mendenhall v. Cooper, 239
Va. 71, 75, 387 S.E.2d 468, 470 (1990).
We have also held that a court lacks the power to proceed
with a suit unless all necessary parties are properly before the
court. Id. at 74, 387 S.E.2d at 470. We have stated that
"[a necessary party's] interests in the subject matter
of the suit, and in the relief sought, are so bound up
with that of the other parties, that their legal
presence as parties to the proceeding is an absolute
necessity, without which the court cannot proceed. In
such cases the court refuses to entertain the suit,
when these parties cannot be subjected to its
jurisdiction."
Bonsal v. Camp, 111 Va. 595, 597-98, 69 S.E. 978, 979 (1911)
(quoting Barney v. Baltimore City, 73 U.S. (6 Wall.) 280, 284
(1867)); Mendenhall, 239 Va. at 74, 387 S.E.2d at 470. Accord
Walt Robbins, Inc. v. Damon Corp., 232 Va. 43, 47-48, 348 S.E.2d
223, 226-27 (1986); Buchanan Co. v. Smith, 115 Va. 704, 707-08,
80 S.E. 794, 795 (1914); Sweeney v. Foster, 112 Va. 499, 505-06,
71 S.E. 548, 550 (1911). See also Kennedy Coal v. Buckhorn Coal,
140 Va. 37, 49, 124 S.E. 482, 486 (1924).
Applying these principles, we hold that this appeal must be
dismissed because the Yacht Club is an indispensable party, and
the respondents failed to make the Yacht Club a party in this
appeal. The respondents assign as error the following:
I. The trial court erred as a matter of law by
not enforcing Article V, Section 1 of the
1956 By-laws of Mount Vernon Yacht Club,
Incorporated, which provides that only
property owners in the subdivision known as
Yacht Haven Estates, in the Mount Vernon
Magisterial District of Fairfax County,
Virginia, may be members of the Corporation.
II. The trial court erred as a matter of law by
Amending the Articles of Incorporation of
Mount Vernon Yacht Club, Incorporated, by
Order of the court. Amendment of Articles of
Incorporation is a legislative act, not a
judicial one. The exclusive means for
amending Articles of Incorporation is set
forth in the Virginia Nonstock Corporation
Act and is beyond the statutory and
constitutional power of a court of equity.
The respondents request, in their prayer for relief, that this
Court enter a final judgment declaring, among other things:
(ii) that the original Bylaws of [the Yacht Club],
which so provide, were not amended prior to January 1,
1957, nor was there any determination made by the then
members of [the Yacht Club], prior to January 1, 1957,
that residents of "other areas" were qualified to be
members of [the Yacht Club];
(iii) that as of January 1, 1957, there were
only five (5) members of [the Yacht Club], and all such
members were "property owners in the subdivision known
as Yacht Haven Estates";
. . . .
(v) that neither [the Yacht Club] nor its putative
officers, directors or committees have the power to
confer membership on any persons who are not "property
owners in the subdivision known as Yacht Haven Estates"
until such time as the corporation might amend its
Articles of Incorporation in accordance with the
Virginia Nonstock Corporation Act;
. . . .
(vii) that any purported change to the
qualification for membership in [the Yacht Club]
undertaken after January 1, 1957, except by amendment
to the Articles of Incorporation, is invalid.
The respondents' assignments of error and requested relief
demonstrate that the Yacht Club's interests in the subject matter
of this appeal "are so bound up with that of the other parties,
that [its] legal presence as [party] to the proceeding is an
absolute necessity," Bonsal, 111 Va. at 597-98, 69 S.E. at 979,
without which this Court cannot proceed.
We reject the respondents' contention that the Yacht Club
should be treated as a party to this appeal because it had notice
of the appeal. The mere fact that an indispensable party who was
a litigant in the trial court has notice that an appeal has been
perfected against another litigant is not sufficient to confer
this Court's jurisdiction over the indispensable party against
whom no appeal has been properly perfected.
We also find no merit in the respondents' contention that
the Yacht Club is estopped from denying it is a party to this
appeal. In this instance, this Court will not permit the
respondents to utilize estoppel principles in an attempt to
create appellate jurisdiction over an indispensable party which
is not properly before the Court.
In view of the foregoing, we find no reason to discuss the
respondents' remaining arguments relating to the motion to
dismiss. Accordingly, we will enter an order granting the motion
to dismiss the appeal.
Appeal dismissed.