Opinion
No. 95-CA-711.
October 29, 1996.
APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, DOCKET NO. 354-579, DIVISION "L"; STATE OF LOUISIANA, HONORABLE CHARLES V. CUSIMANO, II, J.
Hans Joseph Liljebert, Assistant Parish Attorney, Parish of Jefferson, Harahan, for defendant-appellant.
Andre P. Guichard, New Orleans, A. Bruce Netterville, Gretna, for plaintiff-appellee.
Before GAUDIN, BOWES and GRISBAUM, JJ.
In our original opinion, the notice issue was considered by this Court. The appellant's counsel first raised the issue of whether the appellee had proven the Parish of Jefferson had notice of the defect, in accordance with La.R.S. 9:2800, in its reply brief. Rule 2-12.6 of the Uniform Rules of Courts of Appeal provides that a reply brief shall be "strictly confined to rebuttal of points urged in appellee's brief"
While this Court is aware that Rule 1-3 of the Uniform Rules of Courts of Appeal allows an appellate court to render any judgment required by the interests of justice, we choose not to exercise such discretion in this matter.
AFFIRMED ON REMAND .
I respectfully dissent from the majority opinion on remand for the reasons expressed in my original dissent.
There I declared my opinion that the issue of notice was central, and indeed essential, to the disposition of the case — and this finding must be made by this court whether or not there exists a rebuttal brief.
Our Supreme Court has now required us to consider that issue on remand and, with all due respect to the rest of the panel, I do not find that the majority has yet done so. Rather, it appears to me that they have only addressed the refusal of our Court to consider such.
While I agree that the point made by the majority has a certain amount of validity, it is my opinion that a proper determination of the case is impossible without addressing the question of "notice" to the Parish. As I explained fully in my original dissent, because the plaintiff failed to prove the Parish had notice of a defect, he failed to carry his burden of proof and, consequently, I would still reverse the judgment in favor of plaintiff.
Therefore, again, I respectfully dissent.