dissenting.
I feel dismissal of the plaintiff’s suit with prejudice, as sanctioned by the majority, is too harsh a remedy for what appears to be remissness on the part of plaintiff’s attorney. In my opinion, the evidence on record does not support the conclusion that plaintiff himself, rather than his counsel, was at fault and such fault of the plaintiff is required by Allen v. Smith, 390 So.2d 1300 (La.1980) in order to dismiss with prejudice. For this reason, I feel that the trial judge exceeded his discretion by imposing the ultimate sanction of prejudicial dismissal.
I agree with the trial judge that harsh penalties should be imposed as this is an extreme case of disregard for our procedural laws and for the orders of the Court. However, it seems to me more appropriate that plaintiff’s attorney should be penalized, rather than the plaintiff himself. Accordingly, I would amend the judgment by dismissing plaintiff’s case without prejudice and by assessing plaintiff’s counsel with heavy penalties, including attorney’s fees for defendant’s counsel and for all costs of the rules in question, and all reasonable expenses, including costs of this appeal, all in accordance with La.C.C.P. art. 1471,1473 and the Allen case, supra. Dismissal without prejudice would also stop interest from running against defendants and plaintiff himself would not be excessively penalized inasmuch as he is not barred from bringing his action again.
Accordingly, I respectfully dissent.