Danny R. Scott v. West Loop Automotive, Ltd. d/b/a West Loop Mitsubishi--Appeal from County Court at Law No 2 of Bexar County

MEMORANDUM OPINION

No. 04-06-00090-CV

Danny R. SCOTT,

Appellant

v.

WEST LOOP AUTOMOTIVE, LTD.,

Appellee

From the County Court at Law No. 2, Bexar County, Texas

Trial Court No. 306,321

Honorable H. Paul Canales, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: November 15, 2006

REVERSED AND REMANDED Danny R. Scott appeals the trial court's order granting West Loop Automotive, Ltd.'s Motion to Dismiss for Failure to Join Indispensable Party. Danny contends the trial court abused its discretion in dismissing the lawsuit because: (1) the trial court never ordered that Sheshieda Scott be made a party; (2) the trial court never made a determination as to whether joinder of Sheshieda was feasible; and (3) Sheshieda's presence was not indispensable to Danny's DTPA claim. Because the record before us does not indicate that the trial court ordered Danny to amend his petition to join Sheshieda as a party before dismissing the lawsuit, we reverse the trial court's order and remand the cause to the trial court for further proceedings.

Background

In December of 2003, Sheshieda purchased a car from West Loop. Sheshieda and West Loop are the only parties to the Motor Vehicle Purchase Order and the Retail Installment Sale Contract containing the finance terms. In January of 2004, Danny, as Sheshieda's attorney, sent West Loop a demand letter alleging West Loop had made material misrepresentations to Sheshieda with regard to a condition of financing in violation of the DTPA.

In September of 2005, Danny filed a lawsuit against West Loop for damages arising from the alleged misrepresentations made by West Loop. Danny is the only plaintiff named in the petition. In his petition, Danny asserts that Sheshieda was his wife at the time the car was purchased from West Loop. (1)

West Loop filed a motion to dismiss the underlying lawsuit alleging that Sheshieda was an indispensable party. In its motion, West Loop prayed that the court order Danny to join Sheshieda as a plaintiff and dismiss the lawsuit if Danny failed to join her within such time as the court directed.

The clerk's record contains a fiat setting the motion for a hearing on January 6, 2006. The supplemental clerk's record contains an order resetting the hearing for February 3, 2006. Finally, the clerk's record contains the trial court's order granting West Loop's motion and dismissing the underlying lawsuit.

The compulsory joinder rule focuses not so much on whether the trial court has jurisdiction over the parties, but rather on whether the court ought to proceed with the parties before it. Cooper v. Texas Gulf Indus., Inc., 513 S.W.2d 200, 204 (Tex. 1974); Griggs v. Latham, 98 S.W.3d 382, 385 (Tex. App.--Corpus Christi 2003, pet. denied). Generally, the trial court has broad discretion under the rules of civil procedure in questions regarding the joinder of parties, and its determination will not be disturbed on appeal except for abuse of discretion. Griggs, 98 S.W.3d at 385. Under the rules, however, "there is no arbitrary standard or precise formula for determining whether a particular person falls within its provisions." Cooper, 513 S.W.2d at 204.

Under Rule 39(a), Sheshieda was required to be joined in the lawsuit if: (1) she claimed an interest relating to the subject of the lawsuit; and (2) is so situated that the disposition of the action in her absence leaves West Loop subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of Sheshieda's claimed interest. Tex. R. Civ. P. 39(a). In sending the DTPA demand letter, Sheshieda claimed an interest relating to the subject of the lawsuit. Given that Sheshieda is the sole party to the documents evidencing the sales transaction and the petition alleges the misrepresentations were made to Danny and Sheshieda, the trial court did not abuse its discretion in determining that Sheshieda should be made a party. (2) See Cooper, 513 S.W.2d at 204. West Loop should not be required to answer and defend two separate lawsuits and risk double or inconsistent obligations even if it would have a valid defense to any lawsuit subsequently filed by Sheshieda.

Although West Loop filed a motion to dismiss, the prayer for relief acknowledges that the trial court was first required to give Danny the opportunity to amend the pleading to join Sheshieda. See Tex. Dept. of Transp. v. City of Amarillo, No. 07-04-00485-CV, 2005 WL 2367770, at *2 (Tex. App.--Amarillo Sept. 27, 2005, pet. filed) (noting trial court must permit party to amend pleading to join party under Rule 39(a) before dismissing cause); Martin v. Dosohs I, Ltd., Inc., 2 S.W.3d 350, 352-53 (Tex. App.--San Antonio 1999, pet. denied) (noting trial court should not dismiss lawsuit without giving plaintiff an opportunity to amend); Lighthouse Church of Cloverleaf v. Texas Bank, 889 S.W.2d 595, 600 (Tex. App.--Houston [14th Dist.] 1994, writ denied) (noting resort to motion for dismissal should not be granted until plaintiff has been given an opportunity to amend); Tex. R. Civ. P. 39(a) (providing trial court must order the joinder of the party). In its brief, West Loop asserts that the trial court gave Danny the opportunity to amend when it reset the hearing. In his brief, Danny contends that the trial court did not order the parties to take any actions in resetting the hearing. The trial court's order resetting the hearing does not contain any indication that it ordered Danny to amend his petition to join Sheshieda, and no reporter's record was filed containing any verbal pronouncement by the trial court. (3) Because the trial court could not dismiss the lawsuit without giving Danny an opportunity to amend and the record before us does not reflect that such an opportunity was afforded, we reverse the trial court's order and remand the cause to the trial court for further proceedings.

Phylis J. Speedlin, Justice

1. Although West Loop asserts in its brief that Sheshieda is Danny's ex-wife, the record before this court contains no evidence of Danny's relationship to Sheshieda.

2. Rule 39(a) provides that if a person should be joined as a plaintiff but refuses to do so, the person may be made a defendant or, in a proper case, an involuntary plaintiff. Tex. R. Civ. P. 39(a).

3. Because the hearing was pre-trial and the record contains no "specific indication or assertion to the contrary," we must presume the hearing was nonevidentiary; therefore, we do not make any presumptions in favor of the trial court's order based on the absence of a reporter's record. See Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 781-84 (Tex. 2005); see also W & F Transp., Inc. v. Wilhelm, No. 14-03-00103-CV, 2006 WL 2827258, at *2-3 (Tex. App.--Houston [14th Dist.] Oct. 5, 2006, no pet. h.).