
    Kelvin E. BROOKS v. TRADESMEN INTERNATIONAL, INC.
    No. 2003-CA-1871.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 1, 2004.
    
      John W. Redmann, Yurbin E. Velasquez, G., Law Office Of John W. Redmann, PLC, New Orleans, LA, for Plaintiff/Appellant.
    Robert J. May, Reed S. Minkin, Juge, Napolitano, Guuilbeau, Ruli, Frieman & Whiteley, Metairie, LA, for Defendant/Ap-pellee.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS SR.).
   JACHARLES R. JONES, Judge.

The Appellant, Kelvin E. Brooks (hereinafter “Mr. Brooks”), seeks a devolutive appeal from a judgment of the Office of Worker’s Compensation (hereinafter “OWC”) dismissing his claim with prejudice. This cause of action arises out of a claim for compensation benefits resulting from injuries sustained by Mr. Brooks during his employment. We reverse and remand.

Facts/Procedural History

On January 14, 2002, Mr. Brooks was installing a light fixture while standing on an eight-foot ladder, and was struck by 277 volts of electricity causing him to fall backwards, injuring himself. At the time of this accident, Mr. Brooks was employed as an electrician with Tradesmen International, Inc. (hereinafter “Tradesmen”). Mr. Brooks’ alleged that he suffered permanent injuries consisting of lower back pain, neck pain, blurred vision, and headaches.

Subsequent to the accident, Mr. Brooks was treated by three physicians: Dr. Robert A. Steiner, the doctor hired by Tradesmen and who discharged Mr. Brooks on April 26, 2002 to return to regular duty at work because he was of the opinion that the fall did not disable Mr. Brooks; Dr. John J. Watermeier, who treated Mr. Brooks for 11 months and was of the opinion that the January 14, 2002 accident 12caused Mr. Brooks to be disabled and to suffer from lumbar and cervical disc syndrome; and Dr. William R. Knight who was also of the opinion that Mr. Brooks suffered from cervical and lumber strains as a result of his fall.

On or about May 15, 2002, Mr. Brooks filed a claim for disputed compensation against Tradesman. Although trial was set for January 30, 2003, Tradesmen moved to continue the trial date because Mr. Brooks had not responded to discovery requests. The OWC granted the Motion to Continue and re-set trial for May 30, 2003, sending notices to Mr. Brook’s attorney as well as a copy to Mr. Brooks. Mr. Brooks dismissed his attorney around the first of February, and remained unrepresented by counsel until the date of trial. On May 30, 2003, Tradesmen appeared for trial as scheduled, however, Mr. Brooks did not appear. The OWC instructed Tradesmen to contact Mr. Brooks and determine whether he intended to proceed with trial. The person answering the phone at Mr. Brooks’ residence stated that Mr. Brooks was not home and that she did not know where he was. Mr. Brook’s claim was dismissed with prejudice for his failure to appear at trial. The OWC’s dismissal of Mr. Brooks’ claim with prejudice is the subject of the appeal now before this Court.

Discussion

Mr. Brooks, a pro se litigant, maintains that the OWC erred and abused its discretion in dismissing his case with prejudice. We find merit in this argument.

[sIt is well established that a plaintiff who fails to appear on the date set for trial may have the claim dismissed with prejudice upon the defendant’s motion for an involuntary dismissal. Matter v. McKinney, 310 So.2d 696, 698 (La.App.1st Cir. 1975).

LSA-C.C.P. art. 1672(A), states:

A judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial. In such case, the court shall determine whether the judgment of dismissal shall be with or without prejudice.

In deciding whether the dismissal is with or without prejudice pursuant to LSA-C.C.P. Art. 1672(A), a trial court is afforded great discretion, as the trial judge is more familiar with the conditions and requirements of their trial docket. McKinney, 310 So.2d 696, 698 (La.App. 1st Cir. 1975). Therefore, a trial court’s decision to dismiss a case with or without prejudice is reviewed on appeal pursuant to an abuse of discretion and manifest error standard. Id. However, in cases of workers’ compensation, rules of procedure are to be liberally construed. Piper v. Dillard’s Dept. Store, 621 So.2d 865 (La.App. 4th Cir. 1993).

In Archer v. Tudor Construction Company, the Third Circuit affirmed the court’s dismissal with prejudice of a workers compensation claim when the plaintiff failed to appear on the day set for trial. 94-850 (La.App.3 Cir. 2/15/95) 649 So.2d 1251. On appeal, the plaintiff argued that the hearing officer erred by dismissing his claim with prejudice because the defense counsel was supposed to enter a joint motion for a continuance on his behalf. However, the evidence proffered by the plaintiff was not made a part of the record, and the court was precluded from considering the motion on appeal. Therefore, the court opined that Rafter a careful review of the record, it could find nothing to excuse the plaintiffs absence from trial.

In Christopher J. Smith v. Ascension Enterprises, Inc., the Third Circuit amended the judgment of the OWC dismissing the workers’ compensation claim with prejudice. 2000-360 (La.App. 3 Cir. 11/2/00) 776 So.2d 534. In Smith, the claimant filed a disputed claim for compensation against his employer, which was dismissed for his failure to appear at trial. The claimant argued on appeal that the judge erred in dismissing his case with prejudice, because although he and his attorney were late, they did in fact appear at trial. He further asserted that his attorney attempted to contact the court to inform it of his tardiness, however his message was not conveyed to the judge. The court found that the claimant did not intend to abandon his claim because he attempted to inform the court of his tardiness, and also moved for a continuance prior to trial. Thus, the court held that a dismissal without prejudice was proper.

The rulings of the Third Circuit imply that a dismissal with prejudice is proper where the record reflects an intent to abandon the case or there is no reasonable explanation for the claimant’s failure to appear. However, we find that this is to onerous a burden to apply to a pro se litigant seeking workers’ compensation benefits. In the case at bar, the record reflects that the initial trial date was set for January 30, 2003, and upon a motion to continue by Tradesmen, the OWC reset the trial for May 30, 2003. At the beginning of February, shortly after the motion to continue was granted, Mr. Brooks terminated his attorney and remained without counsel until the date of the new trial.

Although the record reflects that the court sent notices to both Mr. Brooks and his former attorney, Mr. Brooks claims that he was unaware of the new trial | sdate. It is the opinion of this court that as a pro se litigant who lacks formal training in the law and its rules of procedure, Mr. Brooks should be allotted more latitude than those plaintiffs represented by counsel. As a dismissal with prejudice denies Mr. Brooks the opportunity to have his day in court, we find that under these circumstances, the dismissal in this case should have been without prejudice.

DECREE

For the foregoing reasons, the judgment of the Office of Worker’s Compensation dismissing the case of Kelvin E. Brooks with prejudice, is hereby amended, and the dismissal of Kelvin E. Brooks worker’s compensation is without prejudice.

AMENDED AND REMANDED.

liBAGNERIS, J.

Dissents with Reasons.

I respectfully dissent from the majority’s opinion for the following reasons;

This is an appeal from a dismissal of Mr. Brooks’ Workers Compensation claim as a result of his failure to appear at the trial on the merits.

FACTS

The record contains the following facts. Kelvin E. Brooks, appellant, injured his back on January 14, 2002 allegedly while working as an Electrician for Tradesmen International, Inc. in Jefferson, Louisiana. Mr. Brooks contends that he was shocked by a high voltage and fell eight feet to the ground off of a ladder. Mr. Brooks contends he sustained permanent injuries to his back and neck.

Mr. Brooks filed a claim for disputed compensation against his employer, Tradesmen International, Inc. in the Office Of Worker’s Compensation on May 15, 2002. Trial was set for January 30, 2003. On January 8, 2003, Tradesmen International, Inc. filed a Motion to continue the trial set for January 30, 2003. The trial court granted the motion for continuance and re-set trial to May 30, 2003. The trial court sent notices to Mr. Brooks’ Attorney of record as well as a copy to Mr. Brooks of the new trial date.

| ^DISCUSSION

The sole issue is whether the Office of Worker’s Compensation abused its discretion by dismissing Brooks’ case with prejudice pursuant to LSA-C.C.P. art. 1672(A). We affirm

Involuntary dismissal of a plaintiffs case for failure to appear on the day set for trial is governed by LSA-C.C.P. art. 1672(a), which states:

A. A judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial. In such case, the court shall determine whether the judgment of dismissal shall be with or without prejudice.

The express language of the article allows the court to decide whether the dismissal is with or without prejudice. In deciding whether to dismiss with or without prejudice pursuant to LSA-C.C.P. art. 1672(a), a trial court is afforded great discretion. As recognized by the First Circuit in Matter v. McKinney, 310 So.2d 696, 698 (La.App. 1st cir.1975):

The trial judge is much more familiar with the conditions and requirements of his trial docket than are we. I have no doubt that contribution to her decision to dismiss with prejudice were considerations respecting the condition of her docket, fairness not only to both these parties but also to other litigants in her court, and the needs of an orderly and prompt administration of justice.

“A judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial. In such case, the court shall determine whether the judgment of dismissal shall be with or without prejudice.” LSA-C.C.P. art. 1672(A).

| oThe trial court therefore did not abuse its discretion in granting defendants’ motion to dismiss Mr. Brooks’ claim when he failed to appear at the trial. Moreover, dismissal for plaintiffs failure to appear to prosecute a claim properly results in dismissal with prejudice. Keyes v. Johnson, 542 So.2d 209, 210 (La.App. 3rd Cir.), writ denied, 546 So.2d 1215 (La.1989); Thomas v. State, 383 So.2d 108, 108-09 (La.App. 3rd Cir.1980). As a result of the trial court’s superior knowledge of the condition of its docket, fairness to the parties and other litigants, and the need for orderly and prompt administration of justice, appellate courts will reverse a trial court’s determination of the terms of dismissal only for clear abuse of the court’s discretion. Keyes, supra. Given Mr. Brooks’ unjustified failure to attend the trial on his claim and the need for the orderly and prompt administration of justice, I cannot find that the trial court abused its discretion in dismissing Mr. Brooks’ claim with prejudice.

I recognize that pro se plaintiffs should be allotted more latitude than plaintiffs represented by counsel because they lack formal training in the law and its frequently arcane or counterintuitive rules of procedure. Mr. Brooks’ error can not be said to be attributable to his lack of education, however; he simply failed to appear at a legal proceeding of which he had notice and that any reasonable person would have realized was necessary to attend. Therefore, it would be improper to excuse his behavior on account of his comparative ignorance of the law, the cost of this litigation to the defendants and the judicial resources that have been consumed in its adjudication.

I have carefully reviewed the record and have found nothing in it to excuse plaintiffs absence from trial, which exposed him to a dismissal with prejudice. By the same token, I have not found anything in the record that would not support the | ¿hearing officer’s wide discretion to dismiss plaintiffs suit with prejudice. As stated in Matter v. McKinney, supra, the hearing officer is best familiar with her trial docket. She knows the conditions and requirements of her docket, the need for promptness and fairness to other litigants in her court, and the need for an orderly and prompt administration of justice. I recognize that a dismissal with prejudice is a harsh remedy, but a failure to appear for trial begs for reproach.

The trial court’s decision to dismiss a case with or without prejudice is reviewed on appeal pursuant to an abuse of discretion and manifest error standard. Horton v. McCary, 93-2315 (La.4/11/94), 635 So.2d 199; Sauce v. Bussell, 298 So.2d 832 (La.1974). Accordingly, after reviewing the facts properly before us in the record, I find that the hearing officer committed no abuse of discretion by dismissing the plaintiffs case with prejudice.

Accordingly, I would affirm the judgment of the worker’s compensation judge.  