Opinion
No. 25114-CA.
October 5, 1994.
APPEAL FROM THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO, STATE OF LOUISIANA, HONORABLE FRANK H. THAXTON, III, JUDGE.
Joseph W. Greenwald, Baton Rouge, for plaintiffs-appellants.
Blanchard, Walker, O'Quin Roberts by Donald Armand, Jr., Shreveport, for defendants-appellees.
Before the Court En Banc, MARVIN, SEXTON, NORRIS, LINDSAY, HIGHTOWER, BROWN and WILLIAMS, JJ., and PRICE, J. Pro Tem. (VICTORY, J., recused).
On Remand from the Louisiana Supreme Court.
ON REMAND
As directed by order of the supreme court of June 24, 1994, 641 So.2d 533, this case was submitted to this court en banc "for reconsideration" after a majority opinion of a five-judge rehearing panel had been rendered March 30, 1994, with two judges dissenting. The en banc panel convened in response to the supreme court order was comprised of eight judges, J. Victory having recused himself when the case was first docketed in this court, and with J.O.E. Price sitting pro tem in the judgeship vacated by the resignation of J. Carl E. Stewart.
The en banc panel of eight judges was evenly divided 4-4 and was not able to produce a majority opinion. Four judges, JJ. Sexton, Lindsay, Hightower and Price would adopt as a proposed en banc opinion the majority opinion of the five-judge panel rendered March 30, 1994, written by J. Sexton. Four judges, JJ. Marvin, Norris, Brown and Williams would adopt the opinion or result written as a proposed en banc opinion by J. Brown.
Copies of the prior opinions of this court in this case rendered by a majority of a three-judge panel and by a majority of a five-judge panel are entered into the appellate record. A copy of J. Brown's proposed opinion to the en banc panel is also placed into the appellate record.
The delays for either litigant seeking further relief or review of any opinion of any panel of this court in this case begin to accrue, as the court rules and law provide, on the date this per curiam is rendered and mailed to the litigants.
SEXTON, J., dissents with written reasons.
LINDSAY, J., dissents for the reasons expressed by SEXTON, J.
HIGHTOWER, J., dissents for the reasons expressed by SEXTON, J.
MARVIN, C.J., concurs with written reasons to the PER CURIAM.
To respond to the dissent, I add these concurring remarks:
When the eight-judge en banc panel evenly divided and could not produce a majority opinion, I viewed the question as being "What opinion of a court of appeal becomes final and when?" I did not, in the per curiam which I authored for the five-judge majority, address the question stated by the dissent that is signed by three judges of the en banc panel: "Does the supreme court order simply suspend our previous opinion [rendered on rehearing on March 30, 1994, by a 3-2 majority] and hold it in limbo until the en banc panel rules, or is the previous opinion eliminated?" Dissent p. 175.
The answer to the question raised by the dissent, I believe, is answered by these authorities:
LSA-Const. Art. 5, § 8, C.C.P. Arts. 2166 and 2167;
Dauzat v. Allstate Insurance Company, 257 La. 349, 242 So.2d 539 (1970), (what constitutes a majority opinion of a court of appeal?);
Dofflemyer v. Gilley, 395 So.2d 403 (La.App. 3d Cir. 1981); Daly v. Abramson, 117 So.2d 772 (La.App. 2d Cir. 1960), and Consolidation Loans, Inc. v. Guercio, 356 So.2d 441 (La.App. 1st Cir. 1977), (what effect does either a writ grant by the supreme court, an order granting a rehearing, or an opinion on rehearing have on a prior opinion in that case by a court of appeal?).
I interpreted the supreme court writ grant of June 24, 1994, on the application of plaintiff for review of the March 30, 1994, opinion of the five-judge rehearing panel of this court that divided 3-2, to be an order to this court to hold an en banc rehearing on the merits of the appeal. The case was submitted on briefs to the eight-judge en banc panel on August 17, 1994, the result by that panel being set forth in the per curiam to which the dissent is leveled.
I dissent from this opinion that implies that a valid opinion from this court does not exist in this matter. That opinion can only be correct if the order of the Louisiana Supreme Court eliminates or "wipes out" both of our previous opinions. If, on the other hand, our previous work is simply suspended during the reconsideration, then I suggest the implication that this court has not issued a valid opinion is in error.
A duly constituted panel of this court originally considered the case and ruled on a two to one vote to affirm the trial court. Five judges of this court granted a rehearing in accordance with the rules of this court (after an erroneously constituted rehearing panel (as a result of a simple clerical error) had also voted to grant a rehearing). The correct five-judge panel, after consideration, maintained the original opinion on a vote of three to two.
Thereafter, the supreme court told us to "reconsider" en banc. We did, and four voted to maintain the previous opinion affirming the trial court, and four voted to overrule it. (However, I suggest there is a serious dispute among those voting to reverse as to the appropriate level of damages which should be awarded.)
At issue, then, is the effect of the perplexing supreme court order directing this court to reconsider this case en banc (a procedure not contemplated by our rules). Was what we were ordered to do a "rehearing"? I seriously doubt that the supreme court ordered us to conduct a rehearing as the court used the word "reconsider," rather than "rehearing." Does it matter?
The question is: Does the supreme court order simply suspend our previous opinion and hold it in limbo until the en banc panel rules, or is the previous opinion eliminated?
It seems patently obvious to me that the supreme court order simply suspended our previous opinion until the vote of the en banc panel. When the en banc panel could not reach a decision by virtue of a 4-4 vote, then the last valid opinion of this court is reinstated or maintained because it has not been overruled. It should be emphasized that a majority of this court has not voted to overturn our previous opinion. I fail to see how a tie vote can supersede a previous valid opinion and thus render no result. We had a result, and it was not overturned, whether it was upon "rehearing" or "reconsideration."
Hence, considering that both a properly constituted three-member and five-member panel of this court has voted to affirm the trial court, this may be a matter of nuance rather than substance.