Willie Jackson v. City of Westlake

• Court: Louisiana Court of Appeal
• Decided: December 10, 2003
• Docket: CA-0003-0782
• Status: Unknown

Opinion

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

03-782

WILLIE JACKSON

VERSUS

CITY OF WESTLAKE

********** APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2000-4871 HONORABLE DAVID PAINTER, DISTRICT JUDGE **********

GLENN B. GREMILLION JUDGE

**********

Court composed of Billie Colombaro Woodard, Glenn B. Gremillion, and Elizabeth A. Pickett, Judges.

Woodard, J., concurs and assigns written reasons.

JUDGMENT VACATED; REMANDED.

J. B. Jones, III Jones Law Firm P. O. Drawer 1550 Cameron, LA 70631 (318) 775-5714 Counsel for Plaintiff/Appellant Willie Jackson

John Lee Van Norman, III P. O. Box 1746 Lake Charles, LA 70602-1746 (337) 436-5787 Counsel for Defendant/Appellee City of Westlake

GREMILLION, Judge. The plaintiff, Willie Jackson, appeals the ruling of the trial court denying

his motion for a new trial. For the following reasons, we vacate the judgment of the

trial court and remand the matter for further proceedings.

FACTS

Jackson filed suit against the defendant, the City of Westlake, seeking

damages as a result of various acts of racial discrimination he experienced while

employed in Westlake’s Water Department. After various motions were filed by

Westlake, this matter proceeded to trial. On the day of the trial, Jackson failed to

appear in court, although his counsel was present. Upon Westlake’s motion for

involuntary dismissal, the trial court dismissed Jackson’s claim against it with

prejudice. Jackson then filed a motion for a new trial arguing that he did not

intentionally fail to appear for court, thus, his claim should not have been dismissed

with prejudice. Following a hearing, the trial court denied Jackson’s motion for a new

trial. This appeal by Jackson followed.

ISSUE

On appeal, Jackson argues that the trial court abused its discretion in

denying his motion for a new trial since evidence was presented that his failure to

appear for trial was inadvertent, rather than intentional.

DISCUSSION

Although Jackson bases his argument on the trial court’s denial of his

motion for a new trial, we find that the trial court erred in granting Westlake’s motion

for an involuntary dismissal. Pursuant to La.Code Civ.P. art. 2164, an appellate court

“shall render any judgment which is just, legal, and proper upon the record on appeal.”

1 In this instance, we find that the trial court erred in granting Westlake’s motion for an

involuntary dismissal based on Jackson’s failure to appear on the day of trial.

Louisiana Code of Civil Procedure Article 1672(A)(1) provides that “[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.” A party represented by counsel

at a proceeding before the court is not considered absent. See La.Code Civ.P. art.

1672, comment (g); Spencer v. Children’s Hosp., 432 So.2d 823 (La.1983); Dickens

v. Commercial Union Ins. Co., 99-698 (La.App. 1 Cir. 6/23/00), 762 So.2d 1193. A

trial court’s dismissal pursuant to La.Code Civ.P. art. 1672 is reviewed pursuant to the

manifest error—clearly wrong standard. Id.

Westlake moved for an involuntary dismissal at the hearing based on

Jackson’s absence, and the trial court dismissed his claim with prejudice due to that

absence. However, Jackson was not absent, since his appearance was made through

his counsel. Moreover, the trial court failed to inquire as to his counsel’s readiness

to proceed with the hearing despite his absence. Accordingly, the trial court’s grant

of Westlake’s motion for an involuntary dismissal pursuant to La.Code Civ.P. art.

1672(A)(1) was in error.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting an

involuntary dismissal in favor of Westlake is vacated, and the matter is remanded for

further proceedings. The costs of this appeal are assessed to the defendant-appellee,

City of Westlake, in the amount of $345.50.

2 3 NUMBER 03-782

Plaintiff - Appellant

Defendant - Appellee

On appeal from the Fourteenth Judicial District Court [No. 2000-4871], for the Parish of Calcasieu, State of Louisiana; the Honorable David Painter, District Judge, presiding.

Woodard, J., concurring.

I respectfully concur in the majority’s opinion. However, I believe that La.Code Civ.P. art. 1972, which addresses the granting of a new trial, governs. Louisiana Code of Civil Procedure Article 1972 (1) provides that a court shall grant a new trial “when the verdict or judgment appears clearly contrary to the law and the evidence.” As I appreciate it, the majority’s analysis finds that the judgment is clearly contrary to La.Code Civ.P. art. 1672, the law governing involuntary dismissal. Given that Mr. Jackson, through his counsel, did appear at trial, La.Code Civ.P. art. 1672 does not allow dismissal of his case. Accordingly, I find that La.Code Civ.P. art. 1972(1), rather than La.Code Civ.P. art. 2164, should govern our analysis. Thus, the trial court erred in refusing to grant Mr. Jackson a new trial.