94-693 La.App. 3 Cir. 12/7/94, Bankston v. Alexandria Neurosurgical Clinic
| Decision Date | 07 December 1994 |
| Citation | 659 So.2d 507 |
| Parties | 94-693 La.App. 3 Cir |
| Court | Court of Appeal of Louisiana — District of US |
Mary Bankston, pro se.
Charles Overton LaCroix, Alexandria, for Briarwood Hosp.
David Richard Sobel, Alexandria, for Dr. C. Babson Fresh, et al.
Mary Self, pro se.
Gary Bankston, pro se.
Before KNOLL and WOODARD, JJ., and BERTRAND, * J. Pro Tem.
[94-693 La.App. 3 Cir. 1] WOODARD, Judge.
This is an appeal from a dismissal of plaintiff's medical malpractice claim as a result of her failure to appear at the trial on the merits.
Appellant, Mary Bankston, injured her back in late 1985. She alleges that on November 4, 1985, Dr. C. Babson Fresh performed an improper surgical procedure on her back to which she did not consent. Ms. Bankston filed suit pro se against Dr. Fresh and six other defendants on November 3, 1986, alleging medical malpractice and a variety of other claims.
The trial court granted defendants' exception of prematurity on the grounds that Ms. Bankston had failed to obtain an opinion from a medical review panel prior to instituting suit. The court then dismissed her claim, reserving to her the right to refile after a medical review panel had rendered a decision.
Ms. Bankston requested review of her claim by a medical review panel on December 10, 1986. The panel disbanded automatically on December 1, 1988, however, before they were able to sign a formal, written opinion. Ms. Bankston therefore refiled her lawsuit pro se on December 1, 1988, again alleging medical malpractice and a variety of other claims.
[94-693 La.App. 3 Cir. 2] A large number of motions and documents were subsequently filed in this case involving multiple decisions of this court and the Louisiana Supreme Court, and Ms. Bankston was sanctioned repeatedly for filing frivolous appeals. Her action was finally set for trial on the merits on July 6, 1993, but she failed to appear. The trial court therefore dismissed her suit with prejudice pursuant to La.C.C.P. art. 1672(A), and she now appeals. Gary Bankston, her husband, and Mary Self, who performed services for her, seek to intervene as appellants. It is difficult to discern from Ms. Bankston's pleadings the exact nature of her assignments of error. It is clear, however, that she feels aggrieved by the dismissal of her claim.
Subsequent to her appeal, Ms. Bankston moved to dismiss her own appeal and to correct the record on appeal. We referred these motions to the merits, and Ms. Bankston applied to the Louisiana Supreme Court for writs to reverse the referral.
The supreme court has neither acted upon Ms. Bankston's application for writs to review our decision to refer her motion to dismiss to the merits nor stayed the proceedings of this court in the matter. We therefore retain jurisdiction of this case. See La.C.C.P. art. 2166(D); Uniform Rules, Courts of Appeal, Rule 4-4.
Despite its title, we do not believe that Ms. Bankston intended her "Motion and Order to Dismiss and Reply to Answers to Defendant's Appeal" to dismiss her appeal. In this document, she urges that "the appeals have been perfected and should be dismissed so the claim can be remanded back to the trial court." Further, in bold type and surrounded by red permanent marker, she requests us to "PLEASE grant these petitioners herein the right to have the jury trial." It is clear that she has merely misused the word "dismissal" and that she intended to request this court to grant her the right to go to trial; in other words, she is again requesting this court to overturn the dismissal of her claim. Given Ms. Bankston's lack of legal education and the nonsensical result of a literal interpretation of her motion, we believe that justice is best served if we interpret her language according to its clear intent, rather than solely by reference to the words as written. We therefore proceed to the merits of her appeal.
[94-693 LA.APP. 3 CIR. 3] APPELLANT'S REFILED PETITION
Ms. Bankston appears to argue that the dismissal of her claim was improper because she refiled her petition on June 25, 1993, so that the trial court had no power to act on the claim that it dismissed on July 6, 1993. She claims that La.R.S. 40:1299.44(C)(1) grants her the right to do so. However, that statute provides only the right to file a petition when none is pending in the parish in which a party is domiciled; the right to refile is not thereby granted.
As a general proposition of law, a plaintiff may amend his petition after the defendant answers only by leave of court, and a court's decision not to permit refiling is reviewable only for abuse of discretion. La.C.C.P. art. 1151; Royer v. St. Paul Fire & Marine Ins. Co., 502 So.2d 232 (La.App. 3 Cir.), writ denied, 503 So.2d 496 (La.1987). Due consideration must be accorded to the prejudice that would result to the defendants if Ms. Bankston were permitted to file a new petition days before trial and five years after she filed her initial petition. Deshotel v. South Louisiana Contractors, Inc., 487 So.2d 789 (La.App. 3 Cir.1986). Consequently, we cannot find that the trial court abused its discretion by refusing to permit Ms. Bankston to file a new petition.
Ms. Bankston also argues that the trial court erred in dismissing her claim on the grounds that the court should have stayed its proceedings during the pendency of her application for writs. However, an application for writs does not automatically stay further proceedings in the trial court. Uniform Rules, Courts of Appeal, Rule 4-4. Ms. Bankston obtained no order staying the proceedings, and it is clear from the record that she was aware of the date on which the trial was set to occur. Therefore, the trial court did not abuse its discretion in permitting this matter to go to trial.
La.C.C.P. art. 1672(A). The trial court therefore did not abuse its discretion in granting defendants' motion to dismiss Ms. Bankston's claim when she failed to appear at the trial.
Moreover, dismissal for plaintiff's failure to appear to prosecute a claim properly results in dismissal with prejudice. Keyes v. Johnson, 542 So.2d 209, 210 (La.App. 3 Cir.), writ denied, 546 [94-693 La.App. 3 Cir. 4] So.2d 1215 (La.1989); Thomas v. State, 383 So.2d 108, 108-09 (La.App. 3 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, 542 So.2d at 210-11. Given Ms. Bankston's unjustified failure to attend the trial on her claim despite repeated warnings to do so, the voluminous and repetitive history of this litigation, and the need for the orderly and prompt administration of justice, we cannot find that the trial court abused its discretion in dismissing Ms. Bankston's claim with prejudice.
We 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. Ms. Bankston's error is not attributable to her lack of education, however; she simply failed to appear at a legal proceeding of which she had knowledge and that any reasonable person would have realized was necessary to attend. Therefore, it would be improper to excuse her behavior on account of her comparative ignorance of the law, especially in light of the cost of this litigation to the defendants and the judicial resources that have been consumed in its adjudication. Despite Ms. Bankston's colorful language, frequently referring to the defendants' and others' attempts to "cheat" or "rob" her of her day in court, it was she who robbed herself of the opportunity to litigate this claim.
Defendants seek damages from Ms. Bankston and her co-appellants under La.C.C.P. art. 2164, arguing that this appeal is frivolous. Normally, this court refrains from awarding damages for frivolous appeals against pro se litigants, even though a small number of such litigants expend a disproportionate amount of the court's time and resources. State...
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