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Wolfpack Enters. Inc. v. Arrington

The trial court abused its discretion in dismissing an action with prejudice based solely on appellant's failure to appear.

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Wolfpack Enterprises, Inc. “Wolfpack” filed an application for confirmation of an arbitration award entered against Marvin Arrington, Jr., Marlon Nichols and R.M. Lathan. However, the award attached to the application is in the name of Wolfpack Enterprises, LLC , not Inc. On March 16, 2004, the court held a hearing on the application. Wolfpack was not present. Following the hearing, the trial court dismissed the application with prejudice for two reasons: 1 lack of prosecution and 2 the proper party had not filed the application within the applicable statute of limitation. Wolfpack appeals, and for reasons that follow, we reverse. We review a dismissal based on lack of prosecution under an abuse of discretion standard.1 Here, the record reflects that the trial court initially scheduled a hearing on the application for February 24, 2004. Although there is no transcript of what transpired on that date, the parties concede that the trial court granted a continuance. Appellees Arrington and Lathan argue that on that date, the court asked the parties to reschedule the hearing to March 16, 2004, and that all of the parties agreed. Wolfpack, however, asserts that the trial court indicated the hearing would be rescheduled for March or April. According to Wolfpack, it never received notice of the March 16 hearing. And the record contains no such notice.

The court held a hearing on March 16, 2004.2 The trial judge commented on Wolfpack’s absence, noting that “I do know Wolfpack’s attorney received notice regarding the hearing,” and stating “I don’t know, maybe he has no continuing interest. But he had to have received published notice.”

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