332 So.3d 208
La. Ct. App.2021Background
- Auto-accident suit filed by Demechie Peterson against Danielle Little, Victoria/Victor Rochon, and their insurers arising from a multi-vehicle rear-end collision on April 22, 2018.
- Case was set for trial after several continuances and a telephonic status conference; trial ultimately set for November 4, 2020.
- Peterson did not appear at trial because he was incarcerated after pleading guilty in Jefferson Parish on March 5, 2020; his counsel appeared in court but said he could not secure a habeas writ because of Hurricane Zeta power outages and orally moved for a continuance.
- Defendants State Farm, Little, and Garrison moved for involuntary dismissal with prejudice under La. C.C.P. art. 1672 for plaintiff’s failure to appear; the trial court granted dismissal with prejudice and awarded costs and attorney’s fees.
- Peterson filed a motion for new trial; the trial court denied it. Peterson appealed the dismissal and the denial of the new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal with prejudice was proper for plaintiff's failure to appear at trial | Counsel was present; absence due to incarceration not willful or in bad faith; counsel could not prepare habeas writ due to Hurricane Zeta; court should consider less severe sanctions | Plaintiff’s incarceration was known when the trial date was set; counsel failed to secure habeas ad testificandum and failed to file a written motion to continue per court rules | Vacated dismissal and remanded — dismissal with prejudice was an abuse of discretion because plaintiff was represented, court did not inquire into counsel’s readiness, no evidence of willfulness/bad faith, and less severe alternatives were not considered |
| Whether awarding attorney’s fees required a traversal hearing | Trial court awarded fees without conducting traversal | Defendants sought fees after dismissal | Not reached — court pretermitted further assignments after vacating dismissal |
| Whether denial of motion for new trial should be upheld | New trial should be granted to set aside the involuntary dismissal | Trial court denied new trial | Not reached — pretermitted as court vacated dismissal and remanded |
Key Cases Cited
- Brooks v. Tradesmen Int’l, Inc., 883 So.2d 444 (La. App. 4 Cir. 2004) (standard of review for involuntary dismissal)
- England v. Baird, 772 So.2d 905 (La. App. 1 Cir. 2000) (dismissal for failure to appear; consider less severe alternatives)
- Zavala v. St. Joe Brick Works, Inc., 897 So.2d 703 (La. App. 1 Cir. 2004) (distinguishing attorney vs. client fault; one absence insufficient without willfulness/bad faith)
- Benware v. Means, 752 So.2d 841 (La. 2000) (courts should consider party/attorney fault before dismissal)
- Spencer v. Children’s Hosp., 432 So.2d 823 (La. 1983) (presence of counsel may constitute appearance for purposes of art. 1672)
- Dickens v. Commercial Union Ins. Co., 762 So.2d 1193 (La. App. 1 Cir. 2000) (same)
- Kelly v. Kelly, 94 So.3d 179 (La. App. 1 Cir. 2012) (plaintiff’s physical presence not always required; must be prepared and able to proceed)
- U.S. Mach. & Equip. Co. v. Kerschner Air Conditioning & Heating Co., 342 So.2d 1278 (La. App. 4 Cir. 1977) (appearance of counsel without witnesses and inability to proceed may not preclude dismissal)
- Hebert v. C.F. Bean Corp., 785 So.2d 1029 (La. App. 4 Cir. 2001) (same)
- Brower v. Quick Serv. Body Shop, 377 So.2d 878 (La. App. 4 Cir. 1979) (same)
- In re Med. Review Panel, 775 So.2d 1214 (La. App. 1 Cir. 2000) (one absence insufficient to support dismissal with prejudice absent willfulness or fault)