Peoples Furniture & Gift, Inc. v. Carson Hicks & Friedrichs Refrigeration, Inc.

CULPEPPER, Judge. A panel of three judges of this Court previously decided this case, 326 So.2d 919 (3rd Cir. 1976). In our previous decision, the judgment of the trial court was modified and there was one dissent. However, the three member panel of this Court unanimously agreed to each modification of the trial court judgment. The dissent sought only to further modify the trial court decree. The dissenting judge did not agree with the trial judge in any respect. Under these circumstances, the original three judge panel was of the opinion that it was not necessary to reargue the case before a panel of five judges as provided in Section 11 of Article V of the Louisiana Constitution of 1974. Following our previous decision, counsel for defendants applied to our Supreme Court for writs, contending that the case should have been reargued before a panel of five judges. On April 7, 1976, our Supreme Court, 329 So.2d 754, granted the writ and ordered reargument in the Court of Appeal before a panel of five judges in accordance with the cited provisions of the Constitution of 1974. On May 19, 1976, the case was reargued in this Court before a panel of five judges, in compliance with the order of our Supreme Court. A majority of the members of the five-judge panel now adopt as the decision of this Court the majority decision rendered by the three-judge panel on February 26, 1976, as reported in 326 So.2d 919. For the reasons assigned, the majority decision previously rendered by a three321 judge panel of this Court on February 26, 1976 and reported in 326 So.2d 919 is reinstated and made the final decision of this Court. PREVIOUS MAJORITY DECISION OF THIS COURT REINSTATED. MILLER, J., dissents and assigns written reasons. HOOD, J., dissents for the reasons assigned by MILLER, J.