Colorado § 13-50-105 - Actions by and against partnerships and associations - what property bound by judgment.

§ 13-50-105. Actions by and against partnerships and associations - what property bound by judgment.

A partnership or other unincorporated association may sue or be sued in an action in its common name to enforce for or against it a substantive right; except that in such action only the property of the partnership or other unincorporated association, the joint property of the associates, and the separate property of any individual member thereof who is named as a party individually and over whom individually the court has acquired jurisdiction either by entry of appearance or by service of process may be bound by the judgment therein.

Source: L. 55: p. 497, § 1. CRS 53: § 76-1-6. C.R.S. 1963: § 76-1-6.

Cross references: For judgment against partnership, see C.R.C.P. 54(e).

ANNOTATION

Law reviews. For article, "Highlights of the 1955 Colorado Legislative Session — Partnerships", see 28 Rocky Mt. L. Rev. 64 (1955).

This section is permissive and not mandatory. Frazier v. Carlin, 42 Colo. App. 226, 591 P.2d 1348 (1979).

Suit in common name or in names of partners. A partnership or limited partnership may sue or be sued either in its common name or by naming its partners. Frazier v. Carlin, 42 Colo. App. 226, 591 P.2d 1348 (1979); Rush v. Winker, 892 P.2d 328 (Colo. App. 1994).

This section provides that an unincorporated association may sue in its common name. This wording is permissive, not mandatory. Morrison-Knudson Co. v. Rocky Mt. Chapter, Nat'l Elec. Contractors Ass'n, 236 F. Supp. 436 (D. Colo. 1964).

This section applies to joint ventures. There appears to be no Colorado case specifically holding that a joint venture comes within this section, but there is no reason why a "joint venture" should not fall within the "unincorporated association" language of this section. Morrison-Knudson Co. v. Rocky Mt. Chapter, Nat'l Elec. Contractors Ass'n, 236 F. Supp. 436 (D. Colo. 1964).

This section does not deem a joint venture a jural entity for all purposes; it would seem to do so only for procedural purposes as venue and service of process. Morrison-Knudson Co. v. Rocky Mt. Chapter, Nat'l Elec. Contractors Ass'n, 236 F. Supp. 436 (D. Colo. 1964).

Notice to general partners sufficient for limited partnership. Because the general partners possess sole management responsibility for a limited partnership, notice to them in their capacities as general partners affords that notice to the limited partnership which is necessary to satisfy the demands of due process. Frazier v. Carlin, 42 Colo. App. 226, 591 P.2d 1348 (1979).

Whether plaintiff qualified as a partnership or as an unincorporated association is applied in Johnson v. Chilcote, 599 F. Supp. 224 (D. Colo. 1984).

For judgment against partnership, see Thomas v. Dunne, 131 Colo. 20, 279 P.2d 427 (1955).

Where the only reference to an entity in a complaint in which a default judgment has been entered is in the context of its status as an alleged partner of a named defendant, the entity was not a party defendant in the case. Rush v. Winker, 892 P.2d 328 (Colo. App. 1994).

If a church is considered an unincorporated association, it can not be represented in court by its pastor who is not an attorney. People v. LaPorte Church of Christ, 830 P.2d 1150 (Colo. App. 1992).

This section and C.R.C.P. 106 can be construed harmoniously. C.R.C.P. 106 (a)(5) complements § 13-50-105 by providing the procedure for subjecting an unnamed partner to the court's jurisdiction after judgment enters against his partnership. Resolution Trust Corp. v. Teem P'ship, 835 F. Supp. 563 (D. Colo. 1993).

C.R.C.P. 106 (a)(5) does not provide an "alternate, cumulative remedy" to this section that a party may elect in lieu of naming a defendant during the pendency of an action where a corporate respondent was a member of the partnership whose identity was known by plaintiff but not named in the original action based upon a friendship with plaintiff's counsel. Gutrich v. LaPlante, 942 P.2d 1266 (Colo. App. 1996), aff'd sub nom. Gutrich v. Cogswell & Wehrle, 961 P.2d 1115 (Colo. 1998).

C.R.C.P. 106(a)(5) may provide relief in the context of partnership law when: (1) The plaintiff could not have determined the existence or status of individual partners despite reasonable attempts to ascertain their identities; (2) the plaintiff could not bring about personal jurisdiction in the original action; or (3) some other reason beyond the plaintiff's control prevented the plaintiff from naming and serving the individual partners. Gutrich v. Cogswell & Wehrle, 961 P.2d 1115 (Colo. 1998).

A judgment against the partnership does not bind the individual partners unless they are individually named and subject to the personal jurisdiction of the court. Where plaintiffs sued the partnership under its common name and failed to sue individual partners, plaintiffs were barred from seeking recovery of the judgment against the partnership from the individual partners. Gutrich v. Cogswell & Wehrle, 961 P.2d 1115 (Colo. 1998).

This section and C.R.C.P. 54(e) contain clear requirements that an individual partner must be named, personally served, and subjected to the jurisdiction of the court to seek recovery from the individual. Plaintiffs actually knew the identity of some of the individual partners but made a conscious decision not to name and serve them. The plaintiffs' judgment was enforceable only against the assets of the partnership. Gutrich v. Cogswell & Wehrle, 961 P.2d 1115 (Colo. 1998).

Applied in Collection Agency, Inc. v. Golding, 44 Colo. App. 421, 616 P.2d 988 (1980); Heinold Hog Mkt., Inc. v. McCoy, 700 F.2d 611 (10th Cir. 1983).

13-50.5 ARTICLE 50.5

Uniform Contribution Among Tortfeasors

13-50.5-101. Short title.

13-50.5-102. Right to contribution - contract or agreement provision to indemnify or hold harmless void against public policy.

13-50.5-103. Pro rata shares.

13-50.5-104. Enforcement.

13-50.5-105. Release or covenant not to sue.

13-50.5-106. Uniformity of interpretation.