Fidelity Acceptance Corp. v. Brown

COLE, Judge. Plaintiff appeals a judgment rendered by the trial court upon its own motion dismiss [1008] ing this suit, with prejudice. The issue is whether plaintiffs failure to appear on the scheduled trial date is sufficient cause for such a dismissal considering that defendants’ counsel also failed to timely appear and the record is devoid of any meaningful fact other than counsel for plaintiff’s explanation that the failure to appear and proceed with the merits was due to a clerical error in his office. We hold that under the stated circumstances the trial court abused its discretion in dismissing with prejudice plaintiff’s cause of action. C.C.P. arts. 1631, 1672. Cf. Bradford v. J. Ray McDermott & Co., Inc., 347 So.2d 1218 (La.App. 1st Cir. 1977), writ denied, La., 351 So.2d 155. We vacate the judgment appealed from and remand for dismissal without prejudice or for further proceedings in accordance with law. Costs of the appeal are to be borne by plaintiff. VACATED and REMANDED.