
    MARTZELL, MONTERO AND LAMOTHE v. Robert CHATELAIN.
    No. C-1136.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 17, 1983.
    
      Thomas Keasler Foutz, Martzell & Gay, New Orleans, for respondents.
    Robert P. Chatelain, Metairie, applicant in pro. per.
    Before REDMANN, C.J., and GULOTTA, KLEES, LOBRANO and WARD, JJ.
   REDMANN, Chief Judge.

We granted certiorari to review the overruling of defendant’s exception of nonjoin-der of necessary parties in plaintiffs’ suit against one of three clients for legal services rendered at that client’s request for the benefit of all three.

Defendant’s application suggested to this court, especially from the failure of plaintiffs’ letter describing the agreement to act as counsel and specifying an hourly rate to expressly so declare, a facial unlikelihood that defendant (a lawyer; the other two were a non-lawyer and a corporation) was to be responsible for 100% of plaintiff’s fees, whether alone or in solido with the other clients. Plaintiffs’ response did not directly attack this unlikelihood. We nevertheless recognize that a lawyer might well refuse to rely on a corporation and a stranger of unknown financial responsibility and insist instead to a known fellow lawyer that he agree to pay 100% of the fees to represent all (though, we repeat, one would expect a letter confirming employment and stating its other terms to have recited such an agreement).

This court also noted plaintiffs’ theoretical policy argument that it is possible to decide a suit against one of three joint obligors without joining the other two, as by judgment for a third of the total fees (in which ease the one cast would surely have no claim against the other two because they are not responsible for his third — and for the same reason cannot third-party them as joint obligors, La.C.C.P. 1111). But C.C.P. 926 expressly lists nonjoinder of a necessary party as a basis for the dilatory exception, and art. 643 expressly declares that joint obligors are necessary parties; and art. 933 provides, in effect, that upon such a dilatory exception the necessary parties must be joined under pain of dismissal of the suit. We deemed it not within a court’s power to disregard so express a statutory entitlement in a case to which it apparently applies.

We therefore granted certiorari in an order containing the above reasons.

This court’s refusal of writs on an earlier overruling of an exception of nonjoinder of indispensable parties had suggested “The potential co-obligors may be ‘necessary’ ... parties .... ” Despite that express suggestion by this court, at the hearing in the trial court on the exception of nonjoinder of necessary parties plaintiffs did not offer testimony or other evidence that the bargain was that defendant would pay the full amount of the fees. The only evidence in the record is plaintiffs own letter to defendant. Plaintiffs’ brief merely argues again the legislative unwisdom of C.C.P. 926.

We accept that it is defendant’s burden, on his exception of nonjoinder of necessary parties, to establish prima facie that the obligation sued on is a joint one. We do not deem it defendant’s burden to prove jointness beyond doubt, and we concede that plaintiffs might yet prevail on this issue at trial on the merits. But we believe that plaintiffs ought not be allowed to sit in further silence at the hearing on the exception of nonjoinder when their own letter, attached by them to their petition, supports defendant’s position by its silence. See La. C.C. 2080.

We therefore conclude that the exception of nonjoinder of necessary parties must be maintained because of C.C.P. 643 and 926, with leave to amend to cure the petition’s defect, C.C.P. 933.

We recognize the possibility that plaintiffs might prove defendant’s personal liability for 100% at trial on the merits, in which case, if we have maintained the exception, the other clients will have been joined for naught. But we deem that possibility preferable to a contrary possibility, namely that plaintiffs might prove only a joint obligation (as their letter implies), in which case, if we have not maintained the exception, defendant will have been denied the joinder he is expressly entitled to under C.C.P. 643 and 926.

The judgment under review is therefore reversed, and the exception of nonjoinder of necessary parties is maintained, with leave to plaintiffs to amend within a time to be fixed by the trial court.

LOBRANO and WARD, JJ., dissent.

LOBRANO, Judge,

dissenting.

I respectfully dissent from the majority’s reversal of the trial judge’s ruling in the matter. Plaintiff has sued defendant, Cha-telain, alleging that he, Chatelain, is responsible in solido for certain attorney fees. Chatelain excepts to the suit alleging that two other parties should be brought in as necessary parties since they are responsible as joint obligors. The trial court overruled the exception.

Plaintiff bears the burden on the merits that defendant is responsible for all of the debt. Defendant can third party the alleged joint obligors, or he can argue on the merits that he is only responsible for ⅛ of the debt, or none of the debt. The majority cites Art. 643 of the Code of Civil Procedure stating that joint obligors are necessary parties. I do not disagree with that. But the very next sentence of that same article states that “... one or more solidary obli-gors may be sued to enforce a solidary obligation without the necessity of joining all others in the action.” This is exactly what plaintiff has done.

I believe the trial court was correct, and would deny the writ.

WARD, Judge,

dissenting.

I am of the opinion that the Trial Judge’s ruling should be affirmed. Relator has not made a showing of irreparable harm and any error allegedly made by the Trial Judge when he denied the exception of nonjoinder may be reviewed on appeal. This court, in countless decisions, has refused writ applications to review a Trial Judge’s denial of a dilatory exception because there was no showing of irreparable harm.

Nonetheless, even if irreparable harm had been shown, I would affirm. The burden of proof lies upon the party who raises the exception, in this case, the relator, Robert Chatelain; not upon respondents, Martzell, Montero, and Lamothe, as the majority holds. The Trial Judge obviously found that relator Chatelain had not proven the exception; that is, he did not prove that he was only jointly liable for his pro rata share of the debt arising from an employment contract.

Even if Martzell, Montero, and Lamothe were charged with the burden of proof, I believe they have carried it. The only apparent evidence of the oral contract of employment is the letter referred to by the majority confirming the agreement. A casual reading of that letter shows that Mart-zell, Montero and Lamothe contracted with Chatelain alone, not with CMTS or its other corporate officers. The letter to Chatelain from a member of the firm is set out below with underlining supplied to support my opinion.

This will confirm your conversation with Jack [Martzell] in which you hired our firm to represent CMTS Investments, Inc., and its individual officers, including you, in connection with the injunction litigation presently pending in the Civil District Court and other courts in the State of Louisiana. This will also confirm your conversation with Jack wherein you agreed to hire our firm at the hourly rate of $150 per hour for services of any attorney in the office.
We look forward to representing you in this matter and hope that it can be brought to a successful conclusion shortly. (Emphasis added).

Although Chatelain filed affidavits to support his claim that his obligation, if any, is joint, those affidavits show only that Martzell, Montero and Lamothe promised Chatelain that they would represent Chate-lain, CMTS, and the other corporate officers, not that they would look to the others for payment of a pro rata share. An agreement to represent three does not exclude a promise by one (Chatelain) to pay the freight for all.

Confusion exists because the majority and counsel fail to distinguish between an obligation of Chatelain alone, and one that he owes with others, either jointly or in solido. A joint or solido obligation by definition presupposes that more than one is liable. If the contract is only with Chate-lain, then only Chatelain is liable under the contract, and he is liable for the whole debt. Martzell, Montero and Lamothe did not contract with CMTS and its other corporate officers. Martzell never once spoke with anyone other than Chatelain, and there is nothing — no corporate resolution, no letter of authority, nothing — to indicate Chatelain had authority to contract for both CMTS, and its corporate officers.

If in the unlikely event Jack Martzell was so stupid to agree that Chatelain would be liable only for one-third and that others whom he had never met and about whom he knew nothing would be liable for the remaining two-thirds, then liability would only be joint, Art. 643 applies; there is non-joinder. But for the majority to conclude Art. 643 applies, it must first reach this conclusion.

When the majority relies upon Art. 643 which provides that joint obligors are necessary parties, the majority must have necessarily assumed as proven that which was not proven; to-wit: the parties are indeed only jointly liable. As a matter of fact, this is the issue of this case, a question that should be left to a trial on the merits, not decided by this Court as a preliminary step before holding there is nonjoinder of necessary parties.

One cannot reach the conclusion there is nonjoinder under Art. 643 unless one also concludes there was several liability. One cannot conclude there was several liability unless one decides the merits of this case. If trial on the merits shows Chatelain is liable only severally, then Martzell, Montero and Lamothe are the losers, not Chatelain, because they failed to join others who were liable. If, on the other hand, as Chatelain argues, they are severally liable, then he has the right to file a third party petition to make them defendants, and if he is found liable for the whole he may demand indemnity from the others. If he is not found liable for the whole thing, he loses nothing, because he is then liable only for his pro rata portion of the debt.

If Chatelain, CMTS, and other corporate officers agreed that each would be liable for the whole debt, then they bound themselves in solido; Art. 643 applies; there is not nonjoinder; the dilatory exception falls. Since of the three only Chatelain was present, I do not believe this is the case. However, if it were, then one debtor may be sued for the whole, and he, of course, may file a third party demand for contribution. While I do not believe the record supports this conclusion, I find that conclusion to be more reasonable than the majority’s which necessarily assumes Chatelain bound himself only jointly for a pro rata share, and that Martzell agreed with absent parties that they too would only be bound jointly for a pro rata share.

Finally, maintaining the exception and offering Martzell, Montero and Lamothe a choice of either amendment or dismissal forces them to pursue a theory of the case contrary to their belief of the facts, and now as an alternative they must allege facts they believe to be false or face dismissal of their lawsuit.  