Opinion
No. 10632.
May 22, 1981. Writ Denied July 2, 1981.
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, DIVISION "E", STATE OF LOUISIANA, HONORABLE GERALD P. FEDOROFF, JUDGE.
J. David Forsyth, New Orleans, for relator.
C. Ellis Henican, Jr., New Orleans, for respondent.
Before SAMUEL, REDMANN, GULOTTA, GARRISON and SARTAIN, JJ.
This matter previously was heard, decided and handed down by a three judge panel of this court. Subsequently, the Supreme Court of Louisiana granted certiorari, reversed and remanded to us for reargument before a panel of at least five judges under La. Const. Art. 5, § 8(B).
Bank of New Orleans Trust Co. v. Seavey, La.App., 374 So.2d 696.
Bank of New Orleans Trust Co. v. Seavey, La., 383 So.2d 354.
The matter now having been heard by a five judge panel, we adhere to the views and conclusion expressed in our prior opinion and decree.
Supra, note 1.
Accordingly, the judgment of the trial court is reversed, the exception of lis pendens is overruled, and the matter is remanded to the trial court for further proceedings in accordance with law. Costs in this court are to be paid by the defendant-respondent; all other costs are to await a final determination.
REVERSED AND REMANDED.
REDMANN, J., dissents with written reasons.
If a suit to annul a promissory note were filed by the maker against the payee in a state district court, and then a suit to collect the note were filed by the payee against the maker in a state district court, lis pendens would lie. Kline v. Freret, 1850, 5 La.Ann. 494; Bischoff v. Theurer, 1853, 8 La.Ann. 15.
Although multiple litigation of issues is not precluded by collateral estoppel in Louisiana, Welch v. Crown-Zellerbach Corp., La. 1978, 359 So.2d 154, it is by lis pendens, La.C.C.P. 531, and by res judicata, La.C.C. 2286. A definitive judgment in the maker's suit against the payee, annulling a promissory note, surely will prevent a latter suit on the note by the payee against the maker. Because there is no collateral estoppel, only res judicata could prevent such a suit in Louisiana, and if a judgment in the first suit is res judicata then the pending of the first suit is lis pendens. The identical reasoning applies to an earlier intervention in the first suit. Dick v. Gilmer, 1849, 4 La. Ann. 520.
The trial judge acted within his authority under C.C.P. 532 and his decision should be upheld.