
    Jack CARON v. Stephen P. BRUNO.
    No. CA-5109.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1986.
    On Rehearing Feb. 12, 1987.
    Writ Denied April 3, 1987.
    Frederick Burkart, New Orleans, for plaintiff-appellee.
    Frank A. Bruno, Bruno & Bruno, New Orleans, for defendant-appellant.
    Before GARRISON, CIACCIO and LOBRANO, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court rendered November 18, 1985 granting an exception of nonjoinder of an indispensable party and dismissing plaintiff’s suit. From that judgment, plaintiff appeals.

Sherrie Gary rented an apartment from plaintiff Jack Caron for $250.00 per month. Gary was injured while working and hired attorney Stephen Bruno to represent her in the workman’s compensation suit. Miss Gary was having difficulty paying her rent and Mr. Caron wanted to evict her. Bruno wrote the following letter to Caron:

“Dear Mr. Caron:
To confirm the subject of our recent telephone conversation, I hereby assure you that in the event of a favorable recovery against Ms. Gary’s former employer I promise that the monies which Ms. Gary owes you will be satisfied out of the proceeds of such recovery upon proper proof being submitted to the undersigned that the sums are due and owing.
Should you require further assurances please do not hesitate to contact me at your convenience.
Thanking you in advance for your continued cooperation, I remain....”

Apparently, Gary was successful in her litigation, but Caron has not been paid the $2,975.00 which he alleges as due and owing. Accordingly, Caron sued the attorney Bruno to recover that amount.

Caron did not name Sherrie Gary as a defendant in the petition, nor did he attempt to have Gary served.

On September 16, 1985, Bruno filed an exception of nonjoinder of an indispensible party. No transcript of the hearing on the rule is contained in the record, thus no oral reasons for judgment were provided. Additionally, no written reasons for judgment were provided either.

C.C.P. Art. 641 provides as follows:
“Indispensable parties to an action are those whose interests in the subject matter are so interrelated, and would be so directly affected by the judgment, that a complete and equitable adjudication of the controversy cannot be made unless they are jointed in the action.
No adjudication of an action can be made unless all indispensable parties are joined therein.”

The fact situation of this case is res nova. The lessee Sherrie Gary, is an indispensable party, however, we find that the trial court judge should have allowed plaintiff to amend the petition to include her as a party instead of dismissing the case. This is especially true in light of the fact that no answer had then been filed. See C.C.P. Art. 932.

For the reasons discussed, the judgment of the district court is vacated and the matter is remanded to permit amendment. JUDGMENT VACATED.

CASE REMANDED.

LOBRANO, J., concurs with reasons.

CIACCIO, J., concurs for the reasons assigned by LOBRANO, J.

LOBRANO, Judge,

concurring.

I agree that the lessee is an indispensible party and should be a named defendant in the lawsuit. However, the trial judge also dismissed plaintiff’s suit on an exception of no cause of action. I would reverse that ruling as the petition clearly states a cause of action.

ON REHEARING

LOBRANO, Judge.

We granted rehearing in this matter to reconsider our original holding that the lessee was an indispensable party to these proceedings. After careful consideration, we conclude we were in error. Our original opinion accurately sets forth the facts of this case.

Article 641 of the Code of Civil Procedure provides:

“Indispensable parties to an action are those whose interests in the subject matter are so interrelated, and would be so directly affected by the judgment, that a complete and equitable adjudication of the controversy cannot be made unless they are joined in the action.
No adjudication of an action can be made unless all indispensable parties are joined therein.”

The Louisiana compulsory joinder statutes place the entire emphasis upon the rights of the absent party. Raftery Elevator Corp. v. Maloney, 447 So.2d 634 (La.App. 4th Cir.1984). A party is deemed indispensable only when that result is absolutely necessary to protect substantial rights. Raftery, supra.

In the instant case plaintiff seeks to enforce an alleged guarantee made by defendant, Bruno to pay the debt of another. Although the principal (lessee) was not named as a defendant, plaintiff’s action can proceed against Bruno without prejudicing any of her rights. We therefore hold that the trial court was in error, and that the exception of lack of an indispensable party is without merit.

We also conclude that the allegations of the petition clearly state a cause of action. It is well settled that in determining the validity of an exception of no cause of action the court need only consider the allegations in the pleadings. Assuming each factual allegation contained therein to be true, the petition clearly states a cause of action.

For the reason assigned herein, this matter is reversed and remanded for further proceedings.

REVERSED AND REMANDED.

GARRISON, Judge,

dissenting in part.

I respectfully dissent.

In Raftery Elevator Corp. v. Maloney, 447 So.2d 634, 635 (La.App. 4th, 1984), Ciaccio, J. as organ of the Court stated:

“La.C.C.P. art. 641 defines indispensable parties and requires their compulsory joinder. The article provides:
‘Indispensable parties to an action are those whose interests in the subject matter are so interrelated, and would be so directly affected by the judgment, that a complete and equitable adjudication of the controversy cannot be made unless they are joined in the action.
No adjudication of an action can be made unless all indispensable parties are joined therein.’
“Great care must be exercised to insure a proper factual analysis of a party’s interest in a case before a determination of the party’s classification is made. Classification as an indispensable party should be applied only after the facts clearly establish that no complete and equitable adjudication of the CONTROVERSY can be made in the party’s absence.
The Louisiana compulsory joinder statutes place the entire emphasis upon the rights of the absent party. Our Code article has as its goal the prevention of injustice to absent parties resulting from litigating cases in their absence which, while not legally binding upon them, nevertheless factually affect their rights. Our courts have concluded that parties should be deemed indispensable only when that result is absolutely necessary to protect substantial rights. See State, Department of Highways v. Lamar Advertising Company of Louisiana, Inc., 279 So.2d 671 (La.1973).
Neither defendants nor the trial judge have provided us with any facts which indicate that any rights of Pisces, Inc., the absent party, would be affected by the litigation between plaintiff and defendants. We have reviewed the entire record before us and we conclude that whatever the result of the litigation between plaintiff and defendants, the rights of Pisces, Inc. mil be unaffected.
If plaintiff should prevail against defendants, the nature of the judgment against Pisces, Inc. will not be altered, nor will any liability of the officers, directors or stockholders of Pisces, Inc. This is also true if defendants should prevail against plaintiff.” (Emphasis added).

Would Sherrie Gary’s rights “... be so directly affected by the judgment ...” if judgment were rendered in favor of the landlord? Yes, because Gary would no longer owe the alleged back due rent amount. Clearly her rights in the lease are directly affected by such a judgment.

Can a “complete and equitable adjudication of the controversy ... be made in (her) absence”? No. Without Gary, the court would not know if the rent has been already paid and the landlord is seeking to “double dip.” Without Gary, the court would not know if Gary attempted to partially abate the rent as a result of defective living conditions or repairs that she made to the premises and deducted from the rent.

Can it truly be said that “whatever the results of the litigation ..., the rights of (Gary) will be unaffected”?

Thus under Raftery, above, the writer would follow the original majority opinion.  