Orange Associates, Inc. v. Albright, 12503

• Citation: 548 S.W.2d 806
• Decision Date: 16 March 1977
• Docket Number: No. 12503,12503
• Parties: ORANGE ASSOCIATES, INC., Appellant, v. Kirby ALBRIGHT et al., Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 806

548 S.W.2d 806

ORANGE ASSOCIATES, INC., Appellant, v. Kirby ALBRIGHT et al., Appellees.

No. 12503.

Court of Civil Appeals of Texas, Austin.

March 16, 1977.

Rehearing Denied April 6, 1977.

Elvis G. Schulze, Law Offices of Gilbert Prud'homme, Austin, for appellant.

Fred E. Davis, Davis & Davis, Austin, for appellees.

SHANNON, Justice.

This is an appeal from the judgment of the district court of Travis County sustaining the plea of privilege of Kirby Albright, and pertains to Tex.Rev.Civ.Stat.Ann. art. 1995, § 29a (1964).

Orange Associates, Inc., appellant, filed suit for breach of contract in the district court of Travis County against Helio-Courier of Texas, Inc., and appellee Kirby Albright. Appellant's suit was grounded upon a written contract of sale of an airplane by Helio-Courier to appellant.

Appellant agreed to pay Helio-Courier $72,500 for the airplane. A part of the contract of sale included a lease-back provision whereby, "HELIO-COURIER or KIRBY ALBRIGHT" agreed to pay appellant five hundred dollars each month for four years for the limited use of the airplane. Appellant alleged that Albright and Helio-Courier, after making one such payment, refused to make further payments.

Appellant's further allegation was that Albright signed the contract of sale ". . . in his individual capacity, and he has become and bound himself by the provisions of such contract to personal liability. The parties to this agreement (the contract of sale) agreed, understood, and acknowledged that Kirby Albright was signing in his individual capacity and not solely as an officer of Helio-Courier of Texas, Inc."

The contract of sale was signed by Kirby Albright in the following manner:

"HELIO-COURIER of Texas, Inc.

Seller

By (signature)

Kirby Albright"

Appellant sought a joint and several judgment for.$23,500 against both defendants based upon the violation of the lease-back provision of the contract.

Helio-Courier of Texas, Inc., filed a plea of privilege to be sued in Dallas County, and Albright filed a plea of privilege to be sued in Rockwall County. Appellant filed its controverting plea, asserting venue in Travis County as to Helio-Courier by reason of Tex.Rev.Civ.Stat.Ann. art. 1995, § 23 and as to Albright by reason of Art. 1995, § 29a. Upon trial the district court overruled the plea of privilege of Helio-Courier and sustained the plea of privilege of Albright. The court severed the cause asserted against Albright and transferred that cause to the district court of Rockwall County.

Section 29a of Art. 1995 provides:

"29a. Two or more defendants. Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto."

Because both Albright and Helio-Courier are not residents of Travis County and because Helio-Courier did not appeal from that part of the judgment overruling its plea of privilege, the question for resolution is whether Albright is a necessary party to the suit against Helio-Courier for purposes of § 29a.

Appellant maintains that Albright was a necessary party within the meaning of § 29a and, as a result, the court erred in sustaining Albright's plea of privilege. We agree. A necessary party is one whose joinder is required in order to afford the plaintiff the complete relief to which he is entitled against the defendant who is properly suable in that county. Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758 (1956); Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774 (1944).

Albright contends that he was not a necessary party since appellant could have obtained a judgment against Helio-Courier for the full amount due under the contract without joinder of Albright. To the contrary, appellant claims that its pleading and proof showed that appellant could not obtain the full relief to which is had a contractual right, that is, a joint as well as a several judgment against both defendants unless both were sued in the same action. See Commonwealth Bank & Trust v. Heid Bros., Inc., 122 Tex. 56, 52 S.W.2d 74 (1932).

As noticed above, appellant sought by way of relief a joint and several judgment for.$23,500 against Helio-Courier and Albright predicated upon the alleged violation of the lease-back provision in the contract.

Appellant's proof of the joint liability of Helio-Courier and Albright consisted of the contract of sale. Albright insists that he had no personal liability because he signed the contract only in his capacity as an officer of...