            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD

Carrie K. Lightfoot                          ) Docket No. 2015-01-0233
                                             )
v.                                           ) State File No. 72875-2014
                                             )
Xerox Business Services, et al.              )
                                             )
                                             )
Appeal from the Court of Workers’            )
Compensation Claims                          )
Audrey A. Headrick, Judge                    )


                         Affirmed - Filed September 12, 2016


The employee has appealed the trial court’s dismissal of her claim, contending that a
dismissal with prejudice for failure to prosecute and failure to comply with the court’s
orders was unwarranted. Following a show cause hearing, the trial court dismissed the
case with prejudice after the employee and her attorney failed to appear at a hearing and
failed to take actions as directed by the trial court. The primary issue on appeal is
whether the trial court abused its discretion in dismissing the case with prejudice. Having
carefully reviewed the record, we find no abuse of discretion, affirm the trial court’s
decision, and certify the trial court’s order of dismissal as final.

Presiding Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board, in
which Judge David F. Hensley joined. Judge Timothy W. Conner dissented.

Arthur C. Grisham, Chattanooga, Tennessee, for the employee-appellant, Carrie
Lightfoot

Fredrick R. Baker, Cookeville, Tennessee, for the employer-appellee, Xerox Business
Services

                         Factual and Procedural Background

       Carrie Lightfoot (“Employee”) alleges suffering injuries arising out of and
occurring in the course and scope of her employment with Xerox Business Services
(“Employer”). Employee, who worked as an imaging technician scanning x-rays, claims

                                            1
that on September 12, 2014, she fell out of a chair as she was reaching for an x-ray that
“kind of flew” as she removed it from an envelope. Employee testified that her chair
flipped her over and rolled on top of her, injuring her back. She claims she was unable to
get up from the floor for several minutes and that she later suffered a stroke due to pain
from the alleged work injury. Employer denied the claim and submitted the affidavits of
three individuals working near Employee when she purportedly fell that contradicted her
allegations. No medical records were introduced at an expedited hearing held on
December 16, 2015, and none appear in the record on appeal.

       Employee filed a petition for benefit determination seeking medical and temporary
and permanent disability benefits. Although the petition reflects the name of the attorney
representing her, Arthur C. Grisham, Employee, with the help of an unidentified third
party, completed and filed the petition without the assistance of her lawyer. Employer
filed a petition of its own seeking to conduct discovery. Following unsuccessful
mediation efforts, a dispute certification notice was filed reflecting multiple disputed
issues and affirmative defenses. On that same date, Employee filed a request for
expedited hearing asking the trial court to conduct an evidentiary hearing. This document
also appears to have been filed by Employee herself, as it does not reflect her attorney’s
name or signature.

       At the expedited hearing, which had been rescheduled from an earlier date at
Employee’s request, Employee testified that she was unaware of what supporting
documents, if any, had been submitted with her petition for benefit determination. She
believed, however, that all necessary documentation had been provided. Employer had
submitted written discovery to Employee prior to the expedited hearing but had received
no response. Employee’s attorney explained at the expedited hearing that he had
experienced problems with his office email system and, thus, was unaware of any
outstanding discovery.

         During Employer’s cross-examination of Employee, Employee became upset and
had difficulty answering questions. After a recess, Employee’s attorney informed the
trial court that he had concerns about his client’s competency. Consequently, he asked to
withdraw the request for expedited hearing and continue the matter until he could have
Employee evaluated by a mental health professional. The request was granted and the
parties were ordered to reconvene for a status conference on February 18, 2016.

       At the February 18, 2016 status conference, Employee’s attorney represented to
the court that he had suffered from a medical condition that, notwithstanding the passage
of approximately two months, had precluded his inquiry into Employee’s competency.
The trial court entered an order on February 26, 2016, again resetting the matter for a
status conference on March 14, 2016. The trial court instructed Employee to be prepared
to inform the court of the results of her mental evaluation and whether she wished to
nonsuit her claim or request a hearing. The court also advised Employee that the court

                                            2
would establish a deadline for requesting a hearing if no such request was filed in the
interim.

        On March 15, 2016, the trial court entered an order reflecting that neither
Employee nor her attorney attended the March 14 status conference. After the March 14
hearing began, the trial court sent an email to Employee’s attorney and attempted to reach
him by phone. Despite the court’s efforts, Employee and her lawyer “failed to appear.”
In its order, the trial court stated:

      To date, three months have passed since the continuance of the expedited
      hearing held on December 16, 2016. This matter cannot continue to sit on
      the docket without moving forward. Accordingly, the Court grants
      [Employee] until Monday, March 28, 2016, to file either a Request for
      Expedited Hearing or a Request for an Initial (Scheduling) Hearing in her
      claim. Alternatively, [Employee] may wish to file a Notice of Non-Suit. If
      [Employee] does not take one of the aforementioned actions, the Court
      will dismiss her claim with prejudice for failure to timely prosecute.

(Emphasis in original.) Employee failed to comply with these instructions and, on April
7, 2016, the trial court notified the parties that a show cause hearing would be held on
April 20, 2016. The show cause order reminded the parties that the court had previously
informed them that the case would be dismissed with prejudice if no action was taken.
The parties participated in the show cause hearing, though no transcript of this hearing
has been provided.

        On April 26, 2016, Employee’s attorney filed a motion asking that the case be set
for a hearing on the merits. The motion noted that, at the show cause hearing on April
20, 2016, Employee had expressed dissatisfaction with counsel’s services and that he
offered to withdraw to allow her to seek alternative representation. The motion also
reflected that the trial court gave counsel until April 25, 2016, to file a request to
withdraw. On that date, however, counsel discovered Employee had filed a complaint
against him with the Board of Professional Responsibility due to his expressed intent to
withdraw from her case and, therefore, he would continue to represent her. With respect
to the failure to comply with the trial court’s March 15, 2016 order, Employee’s attorney
explained that, when the order was issued, he was attending a funeral out of town and
suffered allergies that affected his ability to see and required eye drops to relieve his
symptoms. He acknowledged he had received the email containing the trial court’s order,
had not opened it on account of his allergies, and that it was inadvertently overlooked.

      In response to Employee’s motion to set the case for another hearing, Employer
argued that the case should be dismissed with prejudice. Employer noted that Employee
had not filed any documentation with her petition to support her claim and had not
undergone a mental evaluation, which was the sole reason the December 16, 2015

                                            3
hearing had been terminated. Employer asserted that Employee failed to take advantage
of opportunities to move her case forward and had failed to comply with orders of the
court. Employer further asserted that a hearing had already occurred on December 16,
2015, where Employee was given an opportunity to present her case but elected to stop
the hearing during cross-examination when the questions became difficult and she
became upset. Employer argued “there was no reason for the court to grant her another
opportunity,” especially after being warned that the case would be dismissed with
prejudice if she did not take action.

       On May 3, 2016, the trial court entered an order dismissing Employee’s claim
with prejudice. The trial court observed that no action had been taken on the claim for
more than four months, despite Employee’s request that the expedited hearing be
continued to obtain an evaluation of her mental state and despite the trial court having
entered orders instructing Employee to take specific action by a specific date. Although
Employee had expressed dissatisfaction with her attorney, the trial court’s order reflects
Employee made clear that she did not want her attorney to withdraw. The trial court also
noted that Employee’s attorney had provided contradictory explanations for his failure to
take the actions prescribed by the court.

        Thereafter, Employee, acting on her own, filed a notice of appeal asserting as the
basis for her appeal the fault of her attorney in handling her case.1 Employee’s attorney
subsequently filed a notice indicating his intent to continue representing Employee, and
also filed a motion requesting an extension of time within which to file a brief, which was
granted. Prior to the brief being filed, however, Employee filed a brief without the
assistance of her attorney. Thereafter, Employee’s attorney filed a separate brief.
Employee then requested that the document she filed be considered her brief on appeal
because, according to Employee, her lawyer’s brief was inaccurate. Employer likewise
filed a request for an extension of time, asserting that it had to prepare a response to two
briefs rather than one. That request was also granted. Against this unusual backdrop,
oral argument was conducted on August 31, 2016.2

                                          Standard of Review

       A dismissal for failure to prosecute is reviewed on appeal under an abuse of
discretion standard of review. Fischer v. Sverdrup Tech., Inc., No. M2010-01095-WC-

1
  As with other filings in this case, such as the petition for benefit determination and the request for
expedited hearing, Employee filed this appeal without the assistance of her attorney. On June 16, 2016,
Mr. Grisham notified the Appeals Board that he was representing Employee on appeal, just as he had
throughout the proceedings in the trial court.
2
 Oral argument was conducted at Belmont University College of Law in Nashville. The Appeals Board
extends its appreciation to the law school for allowing us to use its facilities, and also to the attorneys in
this case for their helpful presentations.

                                                      4
R3-WC, 2011 Tenn. LEXIS 574, at *5 (Tenn. Workers’ Comp. Panel June 7, 2011). It is
well-established that this standard prohibits an appellate court from substituting its
judgment for that of the trial court, and the appellate court will find an abuse of discretion
only if the trial court “applied incorrect legal standards, reached an illogical conclusion,
based its decision on a clearly erroneous assessment of the evidence, or employ[ed]
reasoning that causes an injustice to the complaining party.” Wright ex rel. Wright v.
Wright, 337 S.W.3d 166, 176 (Tenn. 2011).

       Moreover, in reviewing a trial court’s exercise of discretion, we presume the trial
court’s decision is correct and review the evidence in a light most favorable to upholding
the decision. Lovlace v. Copley, 418 S.W.3d 1, 16-17 (Tenn. 2013). Also, “we will not
substitute our judgment for that of the trial court merely because we might have chosen
another alternative.” Johnson v. Walmart, No. 2014-06-0069, 2015 TN Wrk. Comp.
App. Bd. LEXIS 18, at *17 (Tenn. Workers’ Comp. App. Bd. July 2, 2015). That said,
discretionary decisions “require a conscientious judgment, consistent with the facts, that
takes into account the applicable law.” White v. Beeks, 469 S.W.3d 517, 527 (Tenn.
2015).

                                                Analysis

        As noted above, Employee, acting pro se although represented by an attorney,
filed a notice of appeal in which she described the basis for her appeal as follows:

        I was misrepresented by my attorney Art Grisham. He did not inform me
        of any of my court dates nor did he submit any of the documents needed to
        support my case. I provided Mr. Grisham with all of my medical records
        and I am willing to do what is necessary to support my case. Mr. Grisham
        has a pattern of noncompliance with my case that is documented in a May
        3, 2016 [order issued] by Judge Audrey A. Headrick. I have since filed a
        complaint with [t]he Board of Professional Responsibility because of his
        negligence.

        Employee subsequently filed an addendum to her notice of appeal disputing the
trial court’s finding that she had failed to file supporting documents establishing her
entitlement to benefits. According to Employee, she provided her medical records to
MetLife Insurance Company3 and had hand delivered unidentified documents to the
Tennessee Bureau of Workers’ Compensation. While the precise issue she seeks to raise
on appeal is unclear, the issue raised by her attorney is whether the trial court abused its
discretion in dismissing the case with prejudice.
3
  There is no indication in the record that MetLife Insurance Company is Employer’s workers’
compensation insurance carrier, and it is unclear what, if any, connection that insurer has with this claim.
Thus, for purposes of this appeal, it is of no consequence that Employee may have submitted her medical
records to that company.

                                                     5
                  Brief and other documents filed by Employee acting pro se

        As a preliminary matter, we observe that Employee has, on multiple occasions,
taken action in this case without the advice or assistance of her attorney. For example,
she filed the petition for benefit determination, the request for expedited hearing, and the
notice of appeal herself. In addition, she filed a brief on appeal, despite being represented
by counsel, and requested that her brief be considered the “brief on file,” essentially
asserting that the brief filed by her attorney be disregarded.4 Employee subsequently
submitted more than two hundred pages of documents on appeal, again on her own. She
filed these pleadings and documents while continuing to insist that her attorney represent
her.

        Consistent with established principles, we have not considered the brief Employee
filed on her own. Nor have we considered the voluminous documents she submitted
while this appeal was pending. As to Employee’s brief, we note that courts “routinely
refuse to consider materials filed pro se by represented parties” because litigants “may
plead and conduct their own cases personally or by counsel . . . but not both.” United
States v. Rohner, 634 Fed. Appx. 495, 505 (6th Cir. 2015). As explained by one court,
“[a] court has no obligation to recognize any pro se filings or arguments made by a party
if the party was represented by counsel at the time the filings or arguments were made.
When a party is represented by counsel, courts are only bound to recognize filings
submitted by the party’s attorney. Consequently, such pro se filings may be treated as if
they are not properly before the court.” In re Pertuset, No. 12-8014, 2012 Bankr. LEXIS
5792, at *23-24 (6th Cir. Dec. 18, 2012) (citations omitted).

        A party engaged in litigation may choose to proceed with or without
representation. However, a party “cannot logically waive or assert both rights. The
[litigant] must make a choice, and he should not be permitted to manipulate his choice so
that he can claim reversible error on appeal no matter which alternative he apparently
chose in the [trial court].” United States v. Conder, 423 F.2d 904, 908 (6th Cir. 1970). If
the rule were otherwise, conflicts and disagreements as to how to best proceed would be
“almost inevitable.” United States v. Mosely, 810 F.2d 93, 98 (6th Cir. 1987). This case
is a prime example of that very concern. Moreover, an opposing party may incur
unnecessary time and expense, just as Employer in this case was put in the untenable
position of having to respond to multiple, competing briefs from the same side of the case
making different assertions.

       Here, Employee elected to proceed in the trial court and on appeal with
representation, insisting that her attorney continue to represent her even when he


4
 Employee’s two-page brief cites no authority and does not address how the trial court purportedly erred
in dismissing her case.

                                                   6
attempted to withdraw. As such, she cannot simultaneously represent herself. Therefore,
we have disregarded the brief she filed acting pro se while being represented by counsel.

       We have also disregarded the numerous documents Employee submitted on appeal
because none of these documents were presented to the trial court. “Evaluating a trial
court’s decision on appeal necessarily entails taking into account information the trial
court had before it at the time the issues were decided by the court, as opposed to the
potentially open-ended universe of information parties may seek to present on appeal
following an adverse decision.” Hadzic v. Averitt Express, No. 2014-02-0064, 2015 TN
Wrk. Comp. App. Bd. LEXIS 14, at *13 n.4 (Tenn. Workers’ Comp. App. Bd. May 18,
2015). Accordingly, “we will not consider on appeal testimony, exhibits, or other
materials that were not properly admitted into evidence at the hearing before the trial
judge.” Id.

                                    Dismissal with prejudice

       Employee argues, via her attorney, that the trial court erred in dismissing the case
with prejudice. Specifically, Employee asserts that “[n]o case should be dismissed with
prejudice by the Court, sua sponte, except after a trial on the merits or . . . [if,] after the
close of the plaintiff’s proof, the defendant moves for dismissal on the grounds that upon
the facts and the law the plaintiff has shown no right to relief.” Employer responds that
dismissal of the case with prejudice was appropriate because Employee not only failed to
prosecute her claim but also failed to comply with the trial court’s orders. Employer also
argues that Employee had an opportunity to present evidence at the expedited hearing and
thus was not deprived of her day in court as she now claims.

                                              A.

        Tennessee Rule of Civil Procedure 41.02 governs involuntary dismissals.
Specifically, Rule 41.02(1) provides that a case may be dismissed “[f]or failure . . . to
prosecute or to comply with these rules or any order of court.” Thus, under the rule, a
trial court is authorized to dismiss a claim for (1) failure to prosecute, (2) failure to
comply with the rules of civil procedure, or (3) failure to comply with an order of the
court. Significantly, such a dismissal operates as an adjudication of the case on its merits.
Tenn. R. Civ. P. 41.02(3).

       Employee asserts that the trial court lacked the authority to dismiss the case apart
from a motion to dismiss or after a trial. Although Rule 41.02(1) references that “a
defendant may move for dismissal,” the Tennessee Supreme Court has held that “a trial
court may under certain circumstances and upon adequate grounds therefor, sua sponte
order the involuntary dismissal of an action.” Harris v. Baptist Mem’l Hosp., 574 S.W.2d
730, 731 (Tenn. 1978). Thus, Employee’s contention that the trial court lacked the
authority to dismiss the case sua sponte has no merit. In any event, Employer, in its

                                              7
response to Employee’s motion to set the case for a second hearing, did assert that the
case should be dismissed.

                                             B.

        Having decided that the trial court had the authority to dismiss the case, we turn to
whether the court abused its discretion in doing so. It is fundamental that a trial court has
the discretion to control litigation before it through the use of case supervision and docket
management. See, e.g., Sissom v. Bridgestone/Firestone, Inc., No. M2011-00363-WC-
R3-WC, 2012 Tenn. LEXIS 411, at *3 n.2 (Tenn. Workers’ Comp. Panel June 20, 2012)
(“trial judges have been charged with controlling the pace of litigation through the use of
supervision and docket management which will ensure efficient disposition of civil
cases”); Lewis v. Dana Holding Corp., No. W2010-01863-WC-R3-WC, 2011 Tenn.
LEXIS 461, at *9 (Tenn. Workers’ Comp. Panel June 6, 2011) (“A trial court has broad
discretion in managing its courtroom and docket.”). However, as explained more fully
below, such discretion, while necessary, is not without limits. Valladares v. Transco
Prods., Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 31, at *26 (Tenn. Workers’ Comp.
App. Bd. July 27, 2016).

       Here, the hearing conducted on December 16, 2015, had already been postponed
from a previous setting at Employee’s request. Although Employee had no difficulty
answering detailed questions on direct-examination at the December 16 hearing, the issue
of her competency was raised by her attorney during Employer’s cross-examination, after
Employee’s case-in-chief, and Employee moved to withdraw her request for a hearing
pending a mental health evaluation, which the trial court granted. However, she was
never evaluated, despite the trial court granting two additional extensions for this
purpose. At one point, the trial court specifically instructed Employee to be prepared to
inform the court of the results of her mental health evaluation and to elect whether she
wished to nonsuit her claim or request a hearing. Employee did neither. The trial court
again instructed Employee to move the case forward by taking specific actions by a
specific date and made clear that the case would be dismissed with prejudice if she failed
to heed the court’s orders. Despite that unambiguous warning, Employee again failed to
comply with the court’s directives. In fact, despite the trial court again reminding the
parties that the court had previously informed them the case would be dismissed with
prejudice unless specific steps were taken, no action was taken prior to the show cause
hearing. Given these circumstances, we have no difficulty concluding that the trial court
acted within its discretion in dismissing the case.

                                             C.

      The more difficult aspect of this appeal concerns whether the dismissal should
have been with prejudice, thereby operating as an adjudication of the claim on its merits.


                                             8
See Tenn. R. Civ. P. 41.02(3). Regarding such dismissals, the Tennessee Supreme Court
has observed:

      A dismissal for failure to prosecute is analogous to a default judgment.
      When a defendant fails to answer a complaint, the plaintiff may obtain a
      default judgment without a hearing on the merits. When a plaintiff fails to
      prosecute the case, the defendant may receive a judgment of dismissal
      without a hearing on the merits. Both dismissals and default judgments are
      drastic sanctions. Neither dismissals nor default judgments are favored by
      the courts. Dismissals based on procedural grounds like failure to
      prosecute and default judgments run counter to the judicial system’s
      general objective of disposing of cases on the merits.

Henry v. Goins, 104 S.W.3d 475, 481 (Tenn. 2003) (citations omitted). There is no
bright-line rule that establishes when a dismissal with prejudice pursuant to Tennessee
Rule of Civil Procedure 41.02(1) is justified. In determining whether a case should be
dismissed for failure to prosecute, the trial judge may “inspect the entire procedural
history of the case before deciding whether to dismiss it for want of prosecution. Each
case, of course, must be evaluated within its own procedural context.” Sheaffer v.
Warehouse Employees Union, 408 F.2d 204, 206 (D.C. Cir. 1969) (citations omitted). As
observed by one court, “dismissal for failure to prosecute is a fact-specific inquiry.”
Grooms & Co. Constr., Inc. v. United States, No. 13-426 C, 2015 U.S. Claims LEXIS
1483, at *17 (Fed. Cl. Nov. 10, 2015).

       In this case, the trial court summarized its rationale for dismissing the case with
prejudice as follows:

      Regardless of whether any of the foregoing reasons proffered by
      [Employee’s attorney] from February 2016 forward had any indicia of
      truth, the pattern demonstrated shows that: (1) [Employee’s attorney] was
      not prepared for the February 2016 hearing; (2) [Employee’s attorney] did
      not attend the March 14, 2016 hearing; (3) [Employee’s attorney] did not
      open the email containing the Court’s March 15, 2016 Order; (4)
      [Employee’s attorney] did not comply with the March 15, 2016 Order; and,
      (5) [Employee’s attorney] was not prepared for the show cause hearing on
      April 20, 2016. Additionally, as of the issuance of this Order, neither
      [Employee’s attorney] nor [Employee] filed medical records in support of
      [Employee’s] claim. An evaluation regarding [Employee’s] competency
      never occurred.

       While the issue is close, we cannot conclude that, based on the circumstances
presented, a dismissal with prejudice amounts to an abuse of discretion. First, no
argument has been made challenging any of the trial court’s multiple and specific

                                            9
findings as to why the case was being dismissed with prejudice, either singularly or as a
whole. At most, Employee’s attorney offered various explanations for failing to comply
with the March 15, 2016 order in particular. These include not receiving the order due to
office email problems, receiving the email containing the order but not opening it due to
allergies affecting his ability to see, attending a funeral out of town, and inadvertently
overlooking the email containing the order. The trial court characterized these excuses as
contradictory and questioned their veracity.

       Second, as noted above, Employee was never evaluated, despite the trial court
granting multiple extensions for this purpose. After one extension, the trial court
specifically instructed Employee to be prepared to inform the court of the results of her
evaluation and whether she wished to nonsuit her claim or request a hearing. When these
instructions were ignored, the trial court again instructed Employee to move the case
forward by taking specific actions by a certain date. The trial court made it clear the case
would be dismissed with prejudice if she failed to do so. Despite that warning, these
instructions were also ignored. Clearly, failing to abide by a court’s order is no small
matter. See Nashville Corp. v. United Steelworkers of Am., 215 S.W.2d 818, 821 (Tenn.
1948) (“The mandates of a [c]ourt . . . must in all cases be obeyed . . . promptly,
faithfully and without question, or evasion.”). Indeed, an involuntary dismissal can result
from the failure to comply with a court’s order standing alone. See Tenn. R. Civ. P.
41.02(1) (a case may be dismissed “[f]or failure . . . to prosecute or to comply with these
rules or any order of court.”) (emphasis added).

       As noted above, we must presume the trial court’s decision is correct and review
the record in a light most favorable to upholding the decision. Lovlace, 418 S.W.3d at
16-17. Having done so, we believe the trial court acted within its discretion in dismissing
the case with prejudice though, admittedly, we may have settled upon a less drastic
alternative had we been the trial judge. But we are not, and we will not substitute our
judgment for that of the judge whose directives were ignored when, as here, the trial
court’s actions are within an acceptable range of alternatives. See Lee Med., Inc. v.
Beecher, 312 S.W.3d 515, 524 (Tenn. 2010) (“The abuse of discretion standard of review
envisions a less rigorous review of the lower court’s decision and a decreased likelihood
that the decision will be reversed on appeal,” reflecting “an awareness that the decision
being reviewed involved a choice among several acceptable alternatives.”); Johnson,
2015 TN Wrk. Comp. App. Bd. LEXIS 18, at *17.

       The fact that Employee has at times expressed dissatisfaction with her attorney,
both in the trial court and on appeal, does not alter our analysis. When engaged in legal
proceedings, parties must either choose to represent themselves or be represented by an
attorney, but not both. State ex rel. Gann v. Henderson, 425 S.W.2d 616, 619-20 (Tenn.
1968). As stated by the Tennessee Supreme Court, a party “cannot take the benefits of
counsel’s services if they win and then reject the services if they lose.” Id.; see also
Conder, 423 F.2d at 908 (“The [litigant] must make a choice, and he should not be

                                            10
permitted to manipulate his choice so that he can claim reversible error on appeal no
matter which alternative he apparently chose in the [trial court].”). Here, Employee was
free to discharge her attorney and elected not to do so. In fact, she actively resisted his
efforts to withdraw, even to the point of filing an ethical complaint against him because
he offered to withdraw. Having voluntarily chosen her representative and insisting that
he remain so, she cannot now avoid the consequences of that choice. “Any other notion
would be wholly inconsistent with our system of representative litigation.” Link v.
Wabash R. Co., 370 U.S. 626, 634 (1962). Indeed, if the rule were otherwise, a party
could retain counsel, continue to use counsel’s services despite perceived shortcomings,
and then blame an adverse result on the lawyer when asking that the case start anew.
Such gamesmanship is untenable.

        We are also mindful that courts should not dismiss claims with prejudice when the
fault for failing to prosecute the claim lies solely with the attorney. See, e.g., Carpenter
v. City of Flint, 723 F.3d 700, 704 (6th Cir. 2013) (“Dismissal is usually inappropriate
where the neglect is solely the fault of the attorney.”); Lowry v. Tenn. Dep’t of Children’s
Servs., No. M2006-02418-COA-R3-CV, 2007 Tenn. App. LEXIS 775, at *13 (Tenn. Ct.
App. Dec. 17, 2007) (observing that a litigant should not be denied access to the courts
due merely to his or her former lawyer’s lack of diligence). However, this is not such a
case. Employee has been an active participant in these proceedings from the outset,
going so far as to filing multiple pleadings and other documents without the advice and
assistance of her lawyer. Moreover, she has repeatedly expressed dissatisfaction with her
attorney, yet continues to insist that he remain her agent. By her own admission,
Employee is aware of her attorney’s purported failure to comply with statutory and
regulatory requirements and with orders of the trial court but she has determined not to
discharge him as her attorney. To the contrary, she has insisted that he not withdraw.

        Furthermore, Employee has not been denied access to the courts and has not been
prevented from presenting her case. Rather, she had the opportunity to present evidence
at the hearing on December 16, 2015 and, in fact, did so, even to the point of concluding
her case-in-chief. This is not a case where a litigant has been “denied access to the courts
due merely to his or her former lawyer’s lack of diligence.” Lowry, 2007 Tenn. App.
LEXIS 775, at *13.

       Finally, although we have upheld the trial court’s action in this case, we hasten to
add that the dismissal of a claim with prejudice is a “drastic” action given the law’s
preference for resolving disputes on their merits. Henry, 104 S.W.3d at 481; Henley v.
Cobb, 916 S.W.2d 915, 916 (Tenn. 1996). The law is clear that “this power must be
exercised most sparingly and with great care that the right of the respective parties to a
hearing shall not be denied or impaired,” and “occasions for the proper exercise of this
power are considered by this Court to be few indeed.” Harris, 574 S.W.2d at 731.
Consequently, a dismissal with prejudice should not be ordered as a matter of course.
See Johnson v. Wade, No. W1999-01651-COA-R3-CV, 2000 Tenn. App. LEXIS 609, at

                                            11
*8 (Tenn. Ct. App. Sept. 6, 2000) (observing that dismissal for failure to prosecute is a
“harsh” sanction and “must be exercised most sparingly and with great care”).5

                                               Conclusion

        For the foregoing reasons, we conclude that the trial court acted within its
discretion in dismissing the case with prejudice. Accordingly, the trial court’s decision is
affirmed. The court’s order of May 3, 2016 is certified as final.




5
  The dissent points out that (1) dismissals with prejudice should be ordered infrequently, (2) that the
actions of an attorney should, under appropriate circumstances, be considered independently of the party
who that attorney represents, and (3) “speed for the sake of speed” should not drive the analysis. We
could not agree more with each of these assertions. As explained above, however, this case is not about a
mere delay of nearly five months. If it were, we would likely find an abuse of discretion and reverse the
dismissal with prejudice. Instead, we are presented with a situation where Employee has not offered any
meaningful challenge to any of the multiple, specific findings as to why the case was dismissed with
prejudice, has not been denied access to the courts or prevented from presenting her case, has been
actively involved in these proceedings from the outset, and has insisted throughout that the lawyer she
now blames remain her chosen representative. Given these particular circumstances, we cannot conclude
that the trial court’s dismissal with prejudice falls outside an acceptable range of alternatives such that it
amounts to an abuse of discretion.

                                                     12
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

Carrie K. Lightfoot                                      )   Docket No. 2015-01-0233
                                                         )
v.                                                       )
                                                         )   State File No. 72875 2014
Xerox Business Services, et al.                          )


                                     CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the
referenced case was sent to the following recipients by the following methods of service
on this the 12th day of September, 2016.
 Name                    Certified   First Class   Via   Fax       Via     Email Address
                         Mail        Mail          Fax   Number    Email

 Art Grisham                                                         X     agrisham@grishambell.com
 Fred Baker                                                          X     fbaker@wimberlylawson.com
 Audrey A. Headrick,                                                 X     Via Electronic Mail
 Judge
 Kenneth M. Switzer,                                                 X     Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                 X     Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




JJeanette
  eanette Baird
 Deputy Cl
 D       Clerk,
             k WWorkers’
                    k ’C  Compensation Appeals Board
 220 French Landing Dr., Ste. 1-B
 Nashville, TN 37243
 Telephone: 615-253-0064
 Electronic Mail: Jeanette.Baird@tn.gov
