Opinion
No. 74-2748.
July 25, 1975.
Jack N. Price, Longview, Tex., J. F. Hulse, El Paso, Tex., for counterclaimants-appellants.
Charles J. Morris, Dallas, Tex., Tom Upchurch, Jr., Stephen F. Scott, Amarillo, Tex., for counterdefendant-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before BROWN, Chief Judge, and WISDOM and COLEMAN, Circuit Judges.
This is an appeal from the District Court's Order dismissing with prejudice because of the failure of appellant's (Leona Lee Corporation) counsel to appear at the time the case was scheduled for trial. We see nothing to be served by setting out the lengthy history and facts. It suffices that this is a case in which a too busy lawyer and a too busy Judge were trying to communicate through legitimate intermediaries with a resulting series of misunderstandings that in retrospect ought not to have occurred but which lack any suggestion of contumacious indifference to the Court of the kind we generally regard as requisite to the use of this severe sanction. See, e.g., Brown v. Thompson, 5 Cir., 1970, 430 F.2d 1214 and Durham v. Florida East Coast Railway Company, 5 Cir., 1967, 385 F.2d 366. Cf. Brown v. O'Leary, 5 Cir., 1975, 512 F.2d 485.
The interests of justice call for a reversal and remand with directions to reinstate the case for expedited disposition, but in doing so the District Court shall assess costs against Leona Lee Corporation, for whatever costs and expenses were incurred by appellee in having its witnesses and counsel present at the scheduled time of trial.
Reversed and remanded.