Sarpy v. Sarpy , 1978 La. App. LEXIS 2875 ( 1978 )

GULOTTA, Judge,

dissenting.

I dissent. One judge of this panel has expressed disagreement (in explanation of his vote to grant a rehearing) with the majority opinion modifying the trial court’s judgment. LSA-Const.1974, Art. 5, § 8(B) provides that where one judge of a three-judge panel dissents from the modification or reversal of a district court judgment, reargument before a five-judge panel is required. Where no application for writs has been made to the Supreme Court, our judgment is final only after denial of the application for rehearing. LSA-C.C.P. art. 2166; Montagne v. Tinker, 201 So.2d 701 (La.App. 3d Cir. 1967). The majority’s holding could easily be used to circumvent the constitutional requirement. In view of the dissent, on the application for rehearing, I am of the opinion this matter should be reargued before a five-judge panel.