Porter v. Lee , 2009 La. LEXIS 2985 ( 2009 )

26 So.3d 111 (2009)

Evangeline PORTER, Howard Bardell, Jr. and Thomas Porter
v.
Harry LEE, in his Capacity as Sheriff of the Parish of Jefferson, The State of Louisiana and Leo Mitchell.

No. 2009-CC-420.

Supreme Court of Louisiana.

October 30, 2009.

James D. Caldwell, Attorney General, Michael Courtney Keller, Phyllis E. Glazer, John Emory Sudderth, Assistant Attorneys General, for applicant.

Martiny & Associates, LLC, Daniel Rault Martiny, Metairie; Stanga & Mustian, PLC, William Roy Mustian, III, Metairie, for respondent.

PER CURIAM.^[*]

After certiorari was granted on the State's application, we determined the evidence relied upon by the State was not properly made a part of the record. Thus, we are not able to properly consider this case. Accordingly, we recall our order granting certiorari and deny the State's application.

WRIT RECALLED. APPLICATION DENIED. CASE REMANDED FOR FURTHER PROCEEDINGS.

WEIMER, J., dissents and assigns reasons.

WEIMER, J., dissents.

I respectfully dissent from the majority's decision to recall the writ. It is clear from the record that the State failed to properly introduce certain evidence to support its motion for summary judgment. However, having granted the writ, I would resolve this case on the merits based upon the record before this court.

NOTES

[*] Judge Benjamin Jones, of the Fourth Judicial District Court, assigned as Justice Pro Tempore, participating in the decision.