Bank of New Orleans and Trust Co. v. Seavey

• Decision Date: 07 April 1980
• Docket Number: No. 65872,65872
• Citation: 383 So.2d 354
• Parties: The BANK OF NEW ORLEANS AND TRUST COMPANY v. Bushnell C. SEAVEY.
• Court: Louisiana Supreme Court

Page 354

383 So.2d 354

The BANK OF NEW ORLEANS AND TRUST COMPANY v. Bushnell C. SEAVEY.

No. 65872.

Supreme Court of Louisiana.

April 7, 1980.

Rehearing Denied May 19, 1980.

C. Ellis Henican, Jr., Albert F. Widmer, Jr., Henican, James & Cleveland, New Orleans, for defendant-applicant.

J. David Forsyth, Sessions, Fishman, Rosenson, Boisfontaine & Nathan, New Orleans, for plaintiff-respondent.

MARCUS, Justice.^*

The Bank of New Orleans and Trust Company instituted this action against Bushnell C. Seavey to recover the balance due on a promissory note executed by defendant and held by plaintiff. Defendant filed a declinatory exception of lis pendens¹ alleging that another suit was pending in the federal district court on the same cause of action, between the same parties in the same capacities, and having the same object.²

After a hearing, the district court sustained the exception and stayed these proceedings pending the outcome of the suit in the federal court. Plaintiff applied for writs to the court of appeal under its supervisory jurisdiction. Without oral argument, the court of appeal reversed the judgment of the district court, overruled the exception of lis pendens, and remanded the case to the district court for further proceedings in accordance with law.³ The panel that reversed the judgment of the district court was composed of three judges with one judge dissenting. Defendant's application for reargument before a panel of at least five judges pursuant to La.Const. art. 5 § 8(B) and/or rehearing was denied with the same judge dissenting from the denial of the application for rehearing but concurring in the denial of the application for reargument before a five-judge panel.⁴

Upon defendant's application, we granted certiorari to review the correctness of (1) the court of appeal's decision not to permit reargument of the case before a panel of at least five judges and (2) its decision overruling defendant's exception of lis pendens.⁵ Finding merit in the first contention, we must reverse and remand to the court of appeal. Hence, we do not reach the merits of the issue raised in the second contention.

La.Const. art. 5 § 8(B), under the heading "Courts of Appeal," provides:

Judgments. 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. (Emphasis added.)

The court of appeal in denying defendant's application for reargument stated that it considered that the above provision does not apply to a judgment rendered by a court of appeal under its supervisory jurisdiction as in the instant case. In addition, after reviewing the constitutional debate on the reargument question,⁶ it concluded that the delegates were concerned "with reversals on facts and there are no factual matters involved here."⁷

It is fundamental that when a constitutional provision is plain and unambiguous, its language must be given effect. City of Baton Rouge v. Short, 345 So.2d 37 (La.1977); State v. Clark, 186 La. 655, 173 So. 137 (1937). The language in art. 5, § 8(B), even though broad in scope, is clear and explicit. Hence, it is not subject to construction and should be applied according to the most usual signification in which the words are generally understood. State v. Bradford, 242 La. 1095, 141 So.2d 378 (1962); State v. Clark, supra; Orleans Parish School Board v. Murphy, 156 La. 925, 101 So. 268 (1924).

La.Const. art. 5, § 8(B) used the term "judgment." A judgment is defined in La.Code Civ.P. art. 1841 as "the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final." Because it determines the rights of the parties and awards relief, it necessarily encompasses both legal and factual determinations. Also, by its express definition, it includes both interlocutory and final determinations. Accordingly, we consider that "judgment" in art. 5 § 8(B) includes all judgments of district courts whether final or interlocutory and whether related to law or to facts.

Additionally, we find nothing in art. 5, § 8(B) to limit its application to modifications or reversals of district court judgments under the appellate jurisdiction of the courts of appeal. It is equally applicable to modifications and reversals of district court judgments under their supervisory jurisdiction. The language "to be modified or reversed" is broad and bears no limitations. If the framers of the constitution had intended that reargument be limited to cases involving judgments rendered under a court of appeal's appellate jurisdiction rather than its supervisory jurisdiction, it would have been easy to thus provide by appropriate language. Indeed, the very fact that the language used is of a broad scope must be considered by us as a cogent reason for not restricting the meaning of the law to categories not plainly indicated by the lawmaker. State v. Bradford, supra. Hence, we consider art. 5, § 8(B) to apply to modifications or reversals of district court judgments under both the appellate and supervisory jurisdictions...