(dissenting in part and concurring in part).
I dissent in part and concur in part for the reasons expressed by Judge Beer.
ORDER
The defendants-appellees have filed an application for re-argument and, alternatively, for a rehearing in this matter. They base their request for re-argument on Article 5, Section 8(B) of the Louisiana Constitution of 1974, which, in pertinent part, provides: “However, when a judgment of a district court is to be modified or reversed and one judge dissents, the case shall be reargued before a panel of at least five judges prior to rendition of judgment, and a majority must concur to render judgment.”
In this matter, a majority of the three judge panel which originally heard the case were of the opinion the judgment should be affirmed in part and reversed in part. The other judge on the panel dissented in part. Accordingly, the matter was submitted to a five judge panel prior to rendition of judgment as required by the above quoted constitutional provision. However, through inadvertence, counsel were not notified of the submission to the five judge panel and, consequently, had no opportunity to rear-gue before that panel.
Under these circumstances, we must recall and set aside our August 31, 1976 opinion and decree so that the parties may have a full opportunity to exercise the above discussed right of re-argument. Accordingly,
IT IS ORDERED that our opinion and decree in this matter, handed down on August 31, 1976, be and the same are now recalled and set aside; and
IT IS FURTHER ORDERED that this matter be re-argued, on briefs only,1 before a panel of five judges of this court. If they desire to do so, the parties may submit additional briefs not later than September 30, 1976.
ON RE-ARGUMENT
Re-argument of this matter having been heard by the original five judge panel, with the majority of that panel adhering to the original decree and to the views expressed in the original opinion:
Our original decree is reinstated and made the judgment of this court.
ORIGINAL DECREE REINSTATED.
BOUTALL and BEER, Judges (dissenting in part and concurring in part).
We dissent in part and concur in part for the reasons previously expressed.
. Both counsel have agreed to submit the re-argument on briefs only.