Michael Wayne Prudhomme VS Rosalia Todd and State Farm Mutual Automobile Insurance Company
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 CA 1132 MICHAEL WAYNE PRUDHOMME VERSUS ROSALIA TODD AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Judgment Rendered December 22 2010 E3EMME3 On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No 531 899 Honorable Curtis A Calloway Judge Presiding Dennis R Whalen Baton Rouge LA Attorney for Plaintiff Appellant Michael Wayne Prudhomme Matthew W Pryor Timothy E Pujol Attorneys for Defendants Appellees Gonzales LA Automobile Insurance Company Suzanne W Miller Attorney for Defendant Appellee Baton Rouge LA State Farm Mutual Automobile Rosalia Todd and State Farm Mutual Insurance Company BEFORE CARTER C GAIDRY AND WELCH JJ J t W1 CARTER C J This is an appeal of a judgment dismissing plaintiffs suit without prejudice due to his attorney failure to comply with the trial court pretrial s s scheduling orders For the reasons that follow we reverse the judgment and remand the matter for further proceedings FACTS On May 2 2005 Michael Wayne Prudhomme filed a petition for damages that he allegedly sustained in an automobile accident Automobile Insurance Company State Farm Liability State Farm Mutual answered in its capacity as the liability insurer for the other driver Rosalia Todd and in its capacity as the uninsuredunderinsured motorist State FarmUM carrier for Mr Prudhomme As the case progressed the trial court adopted a Case Management Schedule signed by the attorneys for Mr Prudhomme and State FarmUM ordering the parties to file their pretrial order by March 26 2007 However the pretrial order was never submitted and eventually a second Case Management Schedule was signed by all attorneys of record and adopted by the trial court on July 24 2008 In the second scheduling order the parties agreed to new dates and were ordered to prepare and file a pretrial order by September 8 2008 Once again the pretrial order was not submitted as ordered On September 30 2008 all attorneys of record attended a status conference After the conference the trial court issued an order that was filed in the record on October 8 2008 but not signed until October 15 2008 ordering Mr Prudhomme s attorney to submit a pretrial order to the court by October 15 2008 The trial s court order also declared that if a pretrial order was not submitted by October 14 2008 the case would be dismissed without prejudice When Mr Prudhomme s attorney failed to submit the pretrial order by the deadline State FarmUM moved 2 the trial court for an entry of an order dismissing Mr Prudhomme case without s prejudice The trial court signed State FarmLM ex parte motion and judgment s of dismissal without prejudice on October 30 2008 The record reflects that notice of the signing of the judgment of dismissal was not mailed to the attorneys of record until March 11 2010 Mr Prudhomme was granted a timely devolutive appeal from the judgment of dismissal on May 17 201 0 2 Mr Prudhomme sole assignment of error is that the trial court legally erred s in dismissing his suit without a hearing LAW AND ANALYSIS The central issue in this appeal is whether the trial court abused its discretion in dismissing Mr Prudhomme case due to his attorney failure to abide by the s s court approved scheduling order The trial court has much discretion in imposing sanctions for a party failure to comply with discovery and scheduling orders and s its ruling will not be reversed absent an abuse of that discretion See Benware v Means 991410 La 1 752 So 841 847 Zavala v St Joe Brick 00 19 2d Works Inc 040065 La App 1 Cir 12 897 So 703 705 Lirette v 04 17 2d On November 21 2008 State Farm Liability and Rosalia Todd also filed a motion to dismiss Mr Prudhomme suit due to his attorney failure to abide by the trial court s s s scheduling orders However this particular motion and the trial court ruling are not at issue in s this appeal 2 A j ud g ment of dismissal without prejudice is a final judgment and is therefore appealable LSA C art 2085 Dusenbery as Tutrix of Dusenberg v McMoRan P Exploration Co 425 So 249 251 La App 1 Cir 1982 Notice of the signing of a final 2d judgment is required in all contested cases except as otherwise provided by law and shall be mailed by the clerk of court to the counsel of record for each party LSA C art 1913A It is P well settled that appeal delays do not begin to run until proper notice is mailed by the clerk of court Voelkel v State 95 0147 La App 1 Cir 10 671 So 478 480 writ denied 95 95 6 2d 2676 667 So 523 La 1 See also Mack v Evans 33 La App 2 Cir 4 2d 96 12 823 00 7 756 So 1270 1271 writ denied 001593 La 8 766 So 1281 The delay for taking 2d 00 31 2d a devolutive appeal does not begin to run until the expiration of the new trial delays LSA P C arts 1974 2087 Any actual knowledge of the signing of the judgment outside of the record and absent compliance with the mailing requirement is not sufficient to cause the new trial and appeal delays to commence Mack 756 So at 1271 Thus because the record in this 2d case reveals that the judgment of dismissal was not mailed until March 11 2010 Mr s Prudhomme motion for appeal filed on April 15 2010 and granted on May 17 2010 is considered timely filed 3 Babin Farm Inc 021402 La App 1 Cir 4 843 So 1141 1143 03 2 2d Moody v Moody 622 So 1376 1381 La App 1 Cir writs denied 629 2d 2d So 1168 La 1993 Each case must be decided upon its own facts and circumstances Benware 752 So at 847 2d Our jurisprudence has clearly followed the established principle that dismissal is a draconian penalty that should be applied only in extreme circumstances Horton v McCary 93 2315 La 4 635 So 199 203 94 11 2d Specifically we have held that in order to justify a dismissal of a plaintiffs suit there must exist sufficient evidence in the record to establish that the plaintiff himself and not only his attorney acted with willful disobedience bad faith or fault In re Medical Review Panel 99 2088 La App 1 Cir 1222 775 00 2d So 1214 1218 Hutchinson v Westport Ins Corp 041592 La 11 04 8 886 So 438 Also the record must show that the party was clearly aware that 2d his noncompliance would result in the dismissal See Garza v International Maintenance Corp 97317 La App 3 Cir 10 702 So 1021 1024 97 29 2d Davis v Byrd Memorial Hospital 628 So 1284 1287 La App 3 Cir 1993 2d writ denied 940072 La 3 634 So 396 Dismissal is generally reserved 94 11 2d for those cases in which the client as well as the attorney is at fault Horton 635 2d So at 203 Additionally dismissal is a sanction of last resort only to be imposed after an opportunity to be heard has been afforded the litigant Hutchinson 886 2d So at 440 In this case State FarmLM and State Farm Liability allege in their briefs that Mr Prudhomme attorney failed to provide pretrial inserts and file the pretrial s order as ordered by the trial court Mr Prudhomme attorney alleges in his brief s that discovery was not complete and the trial court ordered the preparation of the pretrial order over his objection but he offers no explanation as to why his 4 signature appears on the two Case Management Schedules that indicate his agreement with the various datesorders set forth in the schedules The record however contains nothing to indicate that the failure to provide pretrial inserts or file the pretrial order was in any way attributable to Mr Prudhomme himself In fact the briefs indicate that the failure to follow the trial court orders was the sole s fault of Mr Prudhomme attorney not the client Mr Prudhomme s Considering the clarity of the jurisprudence on this specific issue and the complete lack of even an allegation of bad faith on the part of Mr Prudhomme such a harsh remedy of dismissal was not warranted under these facts Furthermore LSAC art 1551C clearly provides in pertinent part that i a P C f s party attorney fails to obey a pretrial order or to appear at the pretrial and scheduling conference or is substantially unprepared to participate in the conference or fails to participate in good faith the court on its own motion or on the motion of a party after hearing may make such orders as are just including orders provided in Article 1471 3 and 4 Emphasis added 2 The record clearly reflects that the trial court judgment of dismissal was rendered on the ex s parte motion of State FarmUM in accordance with the trial court order issued s pursuant to a status conference where only the attorneys of record were present Consequently a contradictory hearing was never held to determine whether the failure to provide pretrial inserts and file the pretrial order was in any way attributable to Mr Prudhomme Since there is no evidence that Mr Prudhomme was aware of or participated in violating the trial court scheduling orders the s trial court erred in dismissing Mr Prudhomme case s 3 Louisiana Code of Civil Procedure article 1471 provides sanctions for failure to comply P with orders compelling discovery including dismissal of the action Thus LSA C art 1551C authorizes dismissal in appropriate cases of disregard for orders pertaining to pretrial procedure See Benware 752 So at 846 2d 5 CONCLUSION For these reasons we reverse the October 30 2008 judgment of dismissal and remand the matter for further proceedings consistent with this opinion All costs of this appeal are assessed onehalf to counsel for Mr Prudhomme and one half to appellees State Farm Liability and State FarmUM See Zavala 897 So 2d at 705 REVERSED AND REMANDED 6
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