No. 8513 Precedential Reversed Processed

Sarpy v. Sarpy

Louisiana Court of Appeal, First Circuit · Filed May 25, 1978 · 359 So. 2d 750

Also decided on this docket: La. Ct. App. 1st Cir., September 2, 1971 253 So. 2d 674; La., April 15, 1883 35 La. Ann. 475; La. Ct. App. 3d Cir., February 3, 1982 410 So. 2d 815; La. Ct. App. 4th Cir., March 27, 1978 354 So. 2d 572; La. Ct. App. 2d Cir., June 14, 1956 88 So. 2d 476

Cited by

Perkins v. Entergy Corp. 756 So. 2d 388 La. Ct. App. 1st Cir. 2000
Molero v. Bass 477 So. 2d 931 La. Ct. App. 1st Cir. 1985
Sarpy v. Sarpy 360 So. 2d 1178 La. 1978

Authorities cited

Identified automatically; this list may not be exhaustive.

Sarpy v. Sarpy 354 So. 2d 572
Sarpy v. Sarpy 356 So. 2d 436

Opinion text

LEMMON, Judge. This matter is before us on a motion to vacate and recall our judgment in this case (reported at 354 So.2d 572 , cert. den. 356 So.2d 436 ) and to assign the case for rear-gument before a panel of five judges in accordance with La.Const.1974, Art. 5, § 8(B). 1 *751 The appeal was originally submitted to a three-judge panel, which rendered a unanimous decision reversing the judgment of the trial court. Mr. Sarpy then applied to this court for a rehearing, and the application was denied, with one judge voting to grant the rehearing. In this motion presently before us Mr. Sarpy argues that a five-judge panel must be convoked any time one judge of a three-judge panel dissents from the reversal of a judgment of the trial court, even if the dissent comes after rendition of the original judgment on appeal. The purpose of Section 8(B) is to require reconsideration by a larger panel “prior to rendition of judgment” whenever the original panel proposes to reverse or modify the trial court judgment, unless the original panel votes unanimously to do so. The issue presented by this motion is whether the unanimity must continue after rendition of the judgment of reversal, until the judgment of this court becomes definitive. Section 8(B) contemplates applicability to the judgment of the appellate court which actually reverses the trial court judgment. Once the judgment is rendered reversing the trial court judgment, Section 8(B) does not require unanimity of the appellate court on an application to reconsider the unanimous judgment of reversal. 2 The motion is denied. MOTION DENIED. GULOTTA, J., dissents and assigns reasons. . La.Const.1974, Art. 5, § 8(B) provides: “A majority of the judges sitting in a case must concur to render judgment. However, when a judgment of a district court is to be modified or reversed and one judge dissents, the case shall be reargued before a panel of at least five judges prior to rendition of judgment, and a majority must concur to render judgment.” . If a rehearing were granted, thus vacating the appellate court judgment, then the provisions of Section 8(B) would arguably apply to require a unanimous decision finally reversing the trial court.