Opinion
No. 2009 CU 0873.
January 5, 2010.
I must respectfully dissent from the majority's opinion in this case. I feel I am operating in a parallel universe. The majority has followed the advice of Yogi Berra; upon reaching the fork in the road, they have taken it. In dismissing the appeal, they have abrogated their function as an appellate court. This court can review a case under either its appellate or supervisory jurisdiction. The majority has chosen to exercise neither in dismissing the appeal. Their untenable position leaves the litigants and trial court in a terrible position without any guidance. By failing to review the matter, this court has left the invalid February 2, 2009 judgment in effect. We should at least exercise our supervisory jurisdiction in this matter, vacate the February 2, 2009 judgment and leave the September 19, 2008 judgment in effect.
I also disagree with the references to "absolute" nullities and the dismissal of the appeal. C.C.P. art 1951 does not require substantively amended judgments to be absolute nullities. The concept of absolute nullity is derived from the civil code articles on contracts. Its application to judgments brings baggage that judgments shouldn't carry. They would be void ab ignitio and an action to annul would be imprescriptable. Such an interpretation conflicts with La.C.C.P. art 2001— 2006, the articles regulating nullity of judgments and renders them meaningless. These articles on nullity of judgments also make no mention of "absolutely nullity."
For these reasons I respectfully dissent.