Tompkins v. Wal-Mart Associates, Inc., [Ms. 2200051, Apr. 9, 2021] ___ So. 3d ___ (Ala. Civ. App. 2021). In this per curiam opinion, the court (Thompson, P.J., and Moore, Edwards, and Hanson, JJ., concur; Fridy, J., recuses) concludes a Montgomery Circuit Court’s order dismissing a workers’ compensation case with prejudice violated the claimant’s right to due process as provided in Hosey v. Lowery, 911 So. 2d 15 (Ala. Civ. App. 2005) because the record did not reflect that the claimant was given notice and an opportunity to participate in a virtual hearing contrary to the circuit court’s conclusion that the claimant had willfully failed to prosecute his action. The record revealed a history of the claimant firing counsel, and the pendency of a motion to withdraw filed by his present counsel of record, so when the claimant himself failed to appear during the virtual hearing, it could not be concluded that the failure to prosecute was willful as required to justify the severe sanction of dismissal with prejudice.
The opinion notes the tension which can arise when a party is represented by counsel but attempts to participate personally in ongoing litigation:
Section 10 of the Alabama Constitution of 1901 provides that a person has the right, “by himself or counsel,” to prosecute or defend “any civil cause to which he is a party” (emphasis added). However, “the cases are ... in substantial agreement with respect to the ... proposition that where a [nonattorney] party ... does appear by counsel he has no right to conduct personally, or to help counsel conduct, the litigation.” H.C. Lind, Annotation, Right of Litigant in Civil Action Either to Assistance of Counsel Where Appearing Pro Se or to Assist Counsel Where Represented, 67 A.L.R.2d 1102, § 3 (1959).
Ms. *9, n. 3. The opinion reiterates the essential requirements of due process as set forth in Hosey v. Lowery:
The plaintiffs argue that they were denied due process by the trial court’s sua sponte dismissal of all claims against Lowery as a sanction for the plaintiffs’ counsel’s failure to attend the October 14 hearing. The constitutional requirement of due process of law means ‘notice, a hearing according to that notice, and a judgment entered in accordance with such notice and hearing.’ Ex parte Rice, 265 Ala. 454, 458, 92 So. 2d 16, 19 (1957). See also Kingvision Pay-Per- View, Ltd. v. Ayers, 886 So. 2d 45, 54 (Ala. 2003). Our Supreme Court has also noted that due process
‘contemplates the rudimentary requirements of fair play, which include a fair and open hearing ... with notice and the opportunity to present evidence and argument ... and information as to the claims of the opposing party, with reasonable opportunity to controvert them.’
Ex parte Weeks, 611 So. 2d 259, 261 (Ala. 1992).
This state ‘has a long-established and compelling policy objective of affording litigants a trial on the merits whenever possible.’ Cincinnati Ins. Co. v. Synergy Gas, Inc., 585 So. 2d 822, 827 (Ala. 1991). A trial court has the discretion and inherent power to dismiss claims for various reasons, including failure to prosecute and failure to attend a hearing, but ‘since dismissal with prejudice is a drastic sanction, it is to be applied only in extreme situations.’ Burdeshaw v. White, 585 So. 2d 842, 848 (Ala. 1991) (quoting Smith v. Wilcox County Bd. of Educ., 365 So. 2d 659, 661 (Ala. 1978)).
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Although we do not condone an unexcused failure to attend a hearing, we do not find that the circumstances presented here were extreme and we do not believe that the sanction was proportionate to the offense. Compare Burdeshaw, 585 So. 2d at 849 (unexcused failure to appear at a hearing and a 10-month delay in attempting to schedule another hearing was not sufficient to warrant dismissal); Brown v. Brown, 896 So. 2d 573 (Ala. Civ. App. 2004) (reversing a dismissal that was based on an inmate’s failure to attend a pretrial conference); and Miller v. Miller, 618 So. 2d 728 (Ala. Civ. App. 1993) (reversing a dismissal based on counsel’s failure to attend hearing; counsel was 30 minutes late).
Ms. **16-17, quoting Hosey v. Lowery, 911 So. 2d at 17-18.