author: PRICE, Judge. FRED W. JONES, Judge.

text:
    LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY, Plaintiff-Appellee, v. Ira B. COLE, et al., Defendants-Appellants.
    No. 14785.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 1982.
    On Rehearing Aug. 17, 1982.

      Sanders & Castete, Ltd. by Herman A. Castete, Winnfield, for defendants-appellants.
    Emmons & Stokes by Douglas L. Stokes, Jr., Jonesboro, for plaintiff-appellee.
    Before PRICE, MARVIN and JASPER E. JONES, JJ.
   PRICE, Judge.

Plaintiff, Louisiana Health Service and Indemnity Company (Blue Cross), brought these cumulated actions seeking annulment of a default judgment and for a monetary award to recover the amount paid under protest in satisfaction of the contested judgment. The trial court annulled the default judgment but rejected plaintiff’s demand for a monetary award. Defendant, Ira B. Cole, appeals the nullity judgment, and by answer to the appeal, plaintiff requests reversal of the rejection of its demand for return of the sum paid in satisfaction of the judgment.

On October 20, 1977, Cole filed suit for benefits under a hospital, surgical, and medical insurance policy issued by Blue Cross. On March 21, 1978, a preliminary default was taken. On April 5, 1978, Cole’s attorney confirmed the default and judgment was rendered in the amount of $7,368.80, plus a statutory penalty of $7,368.80, together with attorney fees of $5,500 and legal interest from date of judicial demand.

On May 18,1978, Cole’s attorney demanded payment on the default judgment. Under threat of execution, Blue Cross paid $21,063.95 in satisfaction of the judgment while reserving all legal rights.

On January 22, 1979, Blue Cross filed this suit against Cole and his attorney, contending the default judgment complained of was obtained by fraud or ill practices under La. C.C.P. Art. 2004. Blue Cross alleged that when they received the citation in Cole’s original suit in October 1977, they immediately called the law firm in Jones-boro who usually represented the company in that area. They further alleged that their attorney obtained an agreement with Cole’s attorney in Winnfield for additional time to prepare and file responsive pleadings, and that the subsequent default judgment was taken by Cole’s attorney without any notice to the attorney for Blue Cross.

In written reasons for judgment, the trial court found Blue Cross’s counsel had received an indefinite extension of time in which to file pleadings and that Cole’s attorney took the default judgment without giving prior notice. For those reasons, the trial court ordered the annulment of the April 5, 1978 default judgment which was rendered against Blue Cross. However, the trial court rejected Blue Cross’s demand for recovery of the amount previously paid under the judgment to Cole and his attorney. The trial court reasoned it would be inequitable to force Cole to return any money he received while his claim for benefits under the policy issued by Blue Cross remained untried. The court noted that Blue Cross could reassert this demand in the trial of the original suit on the insurance policy.

On appeal Cole contends the trial court erred in annulling and setting aside the default judgment because there is no evidence of any fraud or ill practice on the part of his attorney. Cole denies an extension of time to file pleadings was granted to Blue Cross. Therefore, since Blue Cross was not mislead, the default judgment was not the result of fraud or ill practices sufficient to annul a judgment under La. C.C.P. Art. 2004.

The jurisprudence is clear that an action brought under La. C.C.P. Art. 2004 is not limited to cases of actual fraud or wrongdoing. The article is sufficiently broad to encompass any situation wherein a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right. Smith v. Cajun Insulation, Inc., 392 So.2d 398 (La. 1980); Ellerd v. Williams, 364 So.2d 648 (La. App. 2d Cir. 1978); Collins v. Collins, 325 So.2d 773 (La. App. 2d Cir. 1976). Furthermore, a trial court is given great discretion in determining whether a judgment should be annulled because of fraud or ill practice. In Re Koonce, 380 So.2d 140 (La. App. 1st Cir. 1979), writ denied 383 So.2d 23; Succession of Davis, 347 So.2d 906 (La. App. 3d Cir. 1977).

In the instant case, there was conflicting testimony about whether Cole’s attorney did in fact grant Blue Cross an extension of time to file pleadings. The trial court resolved this conflict by finding that an extension was granted. Where conflicts in testimony exist, a trial court’s evaluations of credibility and inferences of fact will not be disturbed upon appellate review unless manifestly erroneous. Pierre v. Landry, 341 So.2d 891 (La.1977); Canter v. Koehring Co., 283 So.2d 716 (La. 1973).

In this instance the trial court’s acceptance of the testimony of the attorney representing Blue Cross is supported by the evidence. The attorney testified to having made three unsuccessful telephone calls before reaching Cole’s attorney on October 28, 1977. His testimony is positive that they had an oral agreement for an indefinite extension of time. This testimony is corroborated by the telephone bill of his law firm showing calls were placed to the office of Cole’s attorney on the dates claimed. On the other hand, Cole’s attorney denied having even talked to the attorney for Blue Cross at this point in time. There is additional testimony from a disinterested Winn-field attorney that such agreements are common practice in that area without the necessity of confirming the agreements by letter. In the final analysis, we cannot say the trial court abused its discretion in finding Cole’s attorney engaged in conduct sufficient to require annulment of the default judgment under La. C.C.P. Art. 2004.

Blue Cross contends the trial court erred in not rendering a money judgment in its favor for the amount paid on the now nullified default judgment. Evidence introduced at trial shows Blue Cross paid this judgment under threat of execution when demanded by Cole’s attorney. Since Blue Cross has proven payment of a thing not due, the trial court erred in not granting judgment in its favor. La. C.C. Art. 2301, et seq. See also Great American Indemnity Co. v. Dauzat, 157 So.2d 308 (La. App. 3d Cir. 1963); Planiol, Traite Elementaire De Droit Civil, Vol. 2, No. 835 et seq. (11th Ed. La. State Law Institute Trans. 1939); 5 Am.Jur.2d, Appeal and Error, § 997, et seq.

We note Blue Cross instituted this suit against Cole, his attorney, and the attorney’s law firm. While it is highly probable that some funds received from payment of the default judgment were disbursed to Cole’s attorney, we find that it would not be proper to cast the attorney or law firm in judgment for restitution since they were not parties of record to the now nullified default judgment. Ira B. Cole was the sole plaintiff in that action and judgment was granted in his name.

In Great American Indemnity Co. v. Dauzat, supra, plaintiff, Earline Dauzat, recovered judgment against defendant insurer and then devolutively appealed said judgment. During the pendency of the appeal, plaintiffs attorney demanded payment of the judgment. The insurer complied with plaintiff’s demand while reserving all rights on appeal.

When the appellate court reduced the amount of plaintiff’s award, the insurer instituted a separate action for restitution against Earline Dauzat, her husband, and her attorney alleging that each received a portion of the excess amount paid on the now reduced judgment. Mrs. Dauzat did not respond to the suit and a valid default judgment was rendered against her. The other defendants filed exceptions of no cause of action which were sustained by the trial court. On appeal the judgment was affirmed on the theory that the right of restitution is limited to recovery from only those parties of record on the judgment under which an overpayment was made. The court of appeal concluded that “in cases such as the one here appealed, in which the party receiving the money payment has disposed of it, in good faith at the time of disposal, the payor may not follow it into the hands of third parties.”

As pointed out by the court in Dauzat, most common law jurisdictions restrict liability for restitution to the parties of record. See 5 Am.Jur.2d, Appeal and Error, § 997. We find that limiting liability for restitution to the party of record on the nullified default judgment is correct, especially in the instant case, where this court could only speculate as to how the funds paid in satisfaction of the judgment were disbursed.

For the above and foregoing reasons, the judgment of the district court annulling and setting aside the judgment rendered on April 5, 1978, in the matter styled Ira B. Cole v. La. Hospital Service, Inc., Number 21,025 on the docket of the Eighth Judicial District Court, is hereby affirmed. The judgment denying plaintiff’s demand for a money award is reversed and set aside, and judgment in the amount of $21,063.95, together with legal interest from date of judicial demand, is hereby rendered in favor of Louisiana Health Service and Indemnity Company against Ira B. Cole. Costs of this appeal are assessed to Ira B. Cole.

Before PRICE, MARVIN, JASPER E. JONES, FRED W. JONES and NORRIS, JJ.

ON REHEARING

FRED W. JONES, Judge.

Our original opinion in this matter rendered on March 2, 1982, granted the relief requested by the appellee, Louisiana Health Service and Indemnity Company, in its answer to the appeal. Thereafter, the appel-lee applied for a rehearing, informing us that Ira B. Cole, the party against whom we rendered judgment, died on October 1, 1981, and no legal representative had been appointed for him. Supporting documents filed in connection with the rehearing application verified these allegations.

A judgment rendered against a deceased person is an absolute nullity. Smith v. Burden Construction Co., 379 So.2d 1133 (La. App. 2d Cir. 1979). Consequently, we were legally mandated to grant a rehearing. Thereafter, pursuant to the rules of this court and La. C.C.P. Article 821, Maudie Catherine Hutson Cole, admin-istratrix of the Succession of Ira B. Cole, was substituted as party defendant in place of her deceased husband.

We have again reviewed the record in this matter and considered issues raised by defendant-appellant, both on the original appeal and in the rehearing application. We conclude that these issues were correctly disposed of in our original opinion. Therefore, we adopt that opinion in full as our opinion on rehearing.

For the reasons set forth therein, judgment of the district court annulling and setting aside the judgment rendered on April 5, 1978, in the matter styled Ira B. Cole v. La. Hospital Service, Inc., Number 21,025 on the docket of the Eighth Judicial District Court, is hereby affirmed. The judgment denying plaintiff’s demand for a money award is reversed and set aside, and judgment in the amount of $21,063.95 is hereby rendered in favor of Louisiana Health Service and Indemnity Company against the Succession of Ira B. Cole. Costs of this appeal are assessed to the Succession of Ira B. Cole.

      . La.C.C.P. Art. 2004. Annulment for vices of substance; peremption of action
      A final judgment obtained by fraud or ill practices may be annulled.
      An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.

       Judgment in the trial court was rendered on June 25, 1981 and an order of appeal was signed on July 10, 1981. Therefore, Cole died while this appeal was pending.


source: Caselaw Access Project

author: NORRIS, Judge. FRED W. JONES, Jr., Judge.

license: Public Domain

text:
    A.M. PARKER and Ruth Gibson Parker, Plaintiffs-Appellants, v. SEARS, ROEBUCK & CO., Defendant-Appellee.
    No. 14794.
    Court of Appeal of Louisiana, Second Circuit.
    March 2, 1982.
    On Rehearing Aug. 17, 1982.

      Richie & Richie by John A. Richie, C. Vernon Richie and Byron A. Richie, Shreveport, for plaintiffs-appellants.
    Wilkinson & Carmody by Arthur R. Car-mody, Jr., Shreveport, for defendant-appel-lee.
    Before PRICE, MARVIN, FRED W. JONES, Jr., SEXTON and NORRIS, JJ.
   NORRIS, Judge.

Plaintiffs, A.M. and Ruth Gibson Parker, appeal the granting of a summary judgment rejecting their demands for medical expenses and general damages suffered by Mrs. Parker after she was stopped while exiting a Sears store after her passage from the store activated its Sensormatic alarm system.

Sears’ Motion for Summary Judgment was based on the pleadings and four affidavits of the Sears’ employees involved in the incident. Plaintiffs filed no counter affidavits or other pleadings in opposition to the motion for summary judgment. After a hearing on the motion, the trial court granted the motion, dismissing plaintiffs’ actions. We affirm.

On October 5, 1979, Mrs. Parker and her sister-in-law went shopping at a Sears store and made certain purchases after which she proceeded to leave the store through its east exit. As she passed through the exit an alarm and flashing red light were activated. Thereafter, she was stopped by an employee of Sears who took Mrs. Parker’s packages from her possession and emptied their contents onto a counter. After the employee searched the contents of the packages, a “clip” was found on the bottom of a garment which was specifically designed for the purpose of activating the alarm system should someone exit the store with this “clip” in his possession. In this instance, it is undisputed that Mrs. Parker had paid for her items and that the sales person who transacted the sale had failed to remove the “clip” from the item purchased.

The affidavits of each of the Sears’ employees are to the effect that Mrs. Parker was stopped, asked to return to the men’s department to have a sensormatic tag removed from her purchase after which the incident was logged in the sensormatic activity log. It is further asserted in these affidavits that the employees explained to Mrs. Parker that a mistake had been made by a salesperson in leaving the tag on the garment and that she was not detained by force. They further declared that there was a sign on each door of the store to the effect that the store is electronically protected by this sensormatic system.

There is no question but that Mrs. Parker was extremely upset by this incident and immediately thereafter went to the department where she had made her purchases to return them.

Plaintiffs then brought this action which was dismissed by the granting of the summary judgment made the subject of this appeal. One assignment of error is asserted, i.e., that the trial court erred in granting a summary judgment in favor of defendant based on Article 215 of the Louisiana Code of Criminal Procedure.

It is a well settled principle of law that a summary judgment should be granted only if there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. Chaisson v. Dominque, 372 So.2d 1225 (La. 1979); Louisiana Code of Civil Procedure Article 966. For a summary judgment to be warranted, the mover must show that there was no genuine issue of material fact and reasonable minds must inevitably conclude that he is entitled to judgment as a matter of law. Chaisson, supra.

An initial question for determination here is whether defendant is entitled to summary judgment on the sole basis that plaintiff failed to respond to defendant’s motion by providing some evidence of the existence of a genuine issue of material fact.

Louisiana Code of Civil Procedure Article 967 provides:

“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.
If it appears from the affidavits of a party opposing the motion that for reasons stated he cannot present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
If it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this article are presented in bad faith or solely for the purpose of delay, the court immediately shall order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees. Any offending party or attorney may be adjudged guilty of contempt. As amended Acts 1966, No. 36, § I."

In Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772, 775 (La. 1980) the court stated while addressing this exact issue:

“The 1966 Comment to C.C.P. 966 states that article 966 and article 967 were amended to accord with 1963 amendments to Rule 56 of the Federal Rules of Civil Procedure. The Notes of Advisory Committee on 1963 Amendment, Subdivision (e), the source provision of C.C.P. 967, observe, with respect to this question, that where ‘the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented.’ U.S.C. § 28, Federal Rules of Civil Procedure Rule 56. It is for this reason that article 967 provides that in the absence of a sufficient response, summary judgment shall be rendered ‘if appropriate.’ On a motion for summary judgment the court must first determine whether the supporting documents presented by the moving party are sufficient to resolve all material fact issues. If they are not sufficient, summary judgment must be denied. Only if they are sufficient does the burden shift to the opposing party to present evidence showing that material facts are still at issue; only at this point may he no longer rest on the allegations and denials contained in his pleadings.”

Therefore, since plaintiffs need not file affidavits unless the moving party has established both that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law, we must determine based on the record of this particular case whether or not the granting of the Motion for Summary Judgment was appropriate in this case. We conclude that it was appropriate.

When a motion for summary judgment is filed and supported by sufficient affidavits, the adverse party cannot rely on the mere allegations of his petition but must present proof by affidavits setting forth facts showing that a genuine issue of fact exists for trial. See Acme Refrigeration of Baton Rouge v. Caljoan, Inc., 346 So.2d 743 (La. App. 1st Cir. 1977).

An unsworn and unverified document is not of sufficient evidentiary quality as to be given weight in determining whether or not there is a genuine issue of material fact. Continental Casualty Co. v. McClure, 313 So.2d 260 (La. App. 4th Cir. 1975). The general rule is that a party opposing summary judgment must file counter affidavits as required by Louisiana Code of Civil Procedure Article 967 or state reasons by affidavit why he cannot and that counter affidavits need not be filed by the opposer if the motion has not been properly made. Harris Mortgage Corp. v. Johnson, 383 So.2d 801 (La. App. 1st Cir. 1980). In the instant case, since the motion was properly made and the affidavits supporting it were sufficient, then it became the responsibility of the plaintiff in his opposition to the motion to file counter affidavits or state reasons why he could not do so. In this instance, plaintiff did neither.

If the mover produces convincing proof by affidavits or other receivable evidence of fact upon which the motion is based and no counter affidavits or other receivable proof are offered by the opposing party to contradict that proof then the conclusion may be justified that there is no genuine issue as to facts so proved even though allegations to the contrary may be contained in the pleadings. Haley v. City of Opelousas, 347 So.2d 903 (La. App. 3rd Cir. 1977). The record in this case is totally void of any verified pleadings or other documents which would support plaintiffs’ allegations in their unverified petition. Therefore, we conclude that the evidence in this case supports the conclusion that there is no genuine issue as to material fact.

This conclusion is based on the uncontra-dicted showing by defendant. Mrs. Parker was stopped by employees of Sears when the alarm system was activated upon her exit through its terminals. The affidavits clearly reflect that she was upset by the incident, but they do not in any respect reflect that she was unreasonably detained or treated in an unreasonable manner. The facts shown by the affidavits could have been contradicted or shown to be untrue by counter affidavits, interrogatories, or depositions. Sufficeth to say, they were not. It has repeatedly been held that in the absence of counter-affidavits, it must be assumed that there is no dispute with regard to the facts set forth in defendant’s affidavits. Roach v. Liberty Mutual Insurance Company, 279 So.2d 775 (La. App. 1st Cir. 1973).

Plaintiffs rather than filing counter-affidavits or other pleadings to assert a dispute as to material facts simply chose to argue that Article 4 of the Constitution of the United States and Article 1, Section 5 of the Louisiana Constitution afforded Mrs. Parker a right to be free from unreasonable arrest, searches, seizures, and invasions of privacy, a right that the Louisiana legislature cannot abrogate by granting civil immunity to persons who violate it. We agree that Mrs. Parker undeniably is vested with this constitutional right. However, there has been no showing here by plaintiffs that this right was violated by Sears in connection with this incident. Plaintiffs further contend that the trial court has interpreted Article 215 of the Code of Criminal Procedure as granting civil immunity to persons who subjected Mrs. Parker to an unreasonable arrest, search, seizure, and invasion of privacy. There has been no showing made here that the behavior of the Sears employees was unreasonable. Therefore, both of these arguments lack merit in this case.

In Lindsey v. Sears, Roebuck and Company, 389 So.2d 902 (La. App. 4th Cir. 1980), the court addressed the question of the reasonableness of the detention of a party who had triggered a similar (if not identical) device while leaving the store. The court stated that it was clear from a reading of the statute, that the legislature intended to afford a merchant a right within statutory limitations to detain a person when the electronic device has been triggered. It then addressed the question of whether the method and extent of the detention was reasonable under the circumstances of the case, after which it was determined that the detention was not unreasonable. We note from a reading of that case that the method of detention was similar to the facts as stated in plaintiff’s petition.

Plaintiffs further assert that a merchant’s reliance on an electronic alarm system for probable cause should be reasonable reliance and that Article 215 is constitutionally defective in that it does not require that a merchant be reasonable in his use of the electronic alarm system. They further contend that the statute must be read to mean that a merchant must use a reasonably accurate alarm system urging that the copy of the sensormatic activity log filed of record indicates an inaccurate system. We find no merit in these arguments.

We have recently addressed similar arguments in a very similar factual context in Allen v. Sears, Roebuck & Company, et al., 409 So.2d 1268 (La. App. 2nd Cir. 1982). In upholding the trial court’s granting of a motion for summary judgment, we determined that Article 215 does not contravene the fourth amendment since it is concerned with the activities of private persons while the fourth amendment regulates the activity of government, and that Article 1, Section 5 prohibits unreasonable searches by anyone, whether private persons or law enforcement officials. We further concluded that Article 215 only provides that detentions conducted in accordance with its provisions be reasonable. Therefore, any detention and search which does not violate Article 1, Section 5 and is carried out in accord with Article 215 is protected. We further stated that:

“The language of the statute requires only that the signal be transmitted indicating the customer is exiting with tagged merchandise and applies to provide ‘reasonable cause to detain’ and there is immunity when the signal is given due to a malfunction in the detecting device causing the signal to occur even when the customer does not have merchandise containing the sensormatic tag.”

Therefore, we conclude in this case that there is no constitutional infirmity in the statute nor in the trial court’s application of it based on the posture of this case. The trial court properly granted summary judgment since the uncontroverted affidavits of Sears employees indicate there to be no genuine issue of material fact and that defendant is entitled to judgment as a matter of law. The judgment of the trial court is affirmed, and all costs of this appeal are taxed against appellants.

AFFIRMED.

ON REHEARING

FRED W. JONES, Jr., Judge.

In our original opinion we affirmed the trial court judgment sustaining defendant’s motion for summary judgment and dismissing plaintiffs’ suit. We granted a rehearing to re-examine our holding in light of the recent Louisiana Supreme Court case of Allen v. Sears, Roebuck & Co. et al., 412 So.2d 1095 (La. 1982), which reversed this court’s judgment sustaining defendants’ motion for summary judgment in a case involving a similar factual situation. See Allen v. Sears, Roebuck & Company et al., 409 So.2d 1268 (La. App. 2d Cir. 1982).

Pertinent to our disposition of this matter is the procedural posture of this litigation. The Parkers, husband and wife, filed suit against Sears, Roebuck & Company (“Sears”) for damages allegedly sustained when one of defendant’s store employees negligently failed to remove a Sensormatic tag from a blouse purchased by Mrs. Parker, thereby setting off an alarm system when Mrs. Parker sought to exit the store. Plaintiffs alleged the negligence of defendant and its employees consisted of:

(A) Failing to remove the “Clip” from the blouse which was purchased by Mrs. Parker;
(B) Failing to take necessary precautions and failing to use necessary procedures to prevent such incidents from occurring;
(C) Using an alarm system which, because of the bright red flashing light and loud sound of the alarm, drew unnecessary public attention to Mrs. Parker, thereby causing her extreme and unnecessary embarrassment and humiliation;
(D) The failure on the part of Sears and its employees to explain to the persons who had witnessed this incident that the incident had been caused by a mistake on the part of Sears and that Mrs. Parker was in no way guilty of shoplifting, thereby causing Mrs. Parker further extreme embarrassment and humiliation;
(E) Openly and forcibly taking Mrs. Parker’s packages from her possession, thereby attracting unnecessary public attention to the incident;
(F) Using excessive and unnecessary force and action against Mrs. Parker thereby drawing unnecessary and unwarranted attention to the incident; and
(G) Illegally and unwarrantly detaining Mrs. Parker.

After filing an answer denying liability, defendant filed a motion for summary judgment pursuant to La. C.C.P. Article 966 . In support thereof, defendant filed affidavits by four of its employees, stating in substance that: around noon on October 5, 1979 the Sensormatic alarm sounded at one of Sears’ exit doors; an employee approached Mrs. Parker and asked that she return to the men’s department to have a Sensormatic tag removed from her purchase; the tag was removed by one of defendant’s employees and the incident was noted in the Sensormatic log book; the merchandise was handed back to Mrs. Parker; Mrs. Parker, who was extremely upset and emotional, then returned the merchandise to the department where it was purchased; Sears has signs at each of its store entrances notifying the public that merchandise in the store is electronically protected by a Sensormatic device.

Plaintiffs filed no affidavits in opposition to the motion for summary judgment.

In our original opinion affirming the district court judgment sustaining the motion for summary judgment, we cited and relied upon our recent case of Allen v. Sears, supra. In acting upon the application of plaintiffs therein for a writ of certiorari or review, the Louisiana Supreme Court simply stated:

“Granted. Summary judgment reversed. Case remanded for trial on the merits.”

It -is axiomatic that a summary judgment should be granted .under Article 966 only if the mover shows there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Chaisson v. Domingue, 372 So.2d 1225 (La. 1979).

On a motion for summary judgment the court must first determine whether the supporting documents presented by the moving party are sufficient to resolve all material fact issues. If they are not sufficient, the motion must be denied. Only if they are sufficient does the burden shift to the opposing party to present evidence showing that material facts are still at issue and only at this point may he no longer rest on the allegations and denials contained in his pleadings. La. C.C.P. Art. 967; Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La. 1980).

Here, plaintiffs have alleged, inter alia, that defendant’s alarm system drew unnecessary public attention to Mrs. Parker and that defendant’s employees failed to explain to onlookers that Mrs. Parker was not guilty of shoplifting, as suggested by the alarm signal. These allegations were unrefuted in the affidavits submitted by defendant in support of its motion for summary judgment. Consequently, the supporting documents in question were not sufficient tp resolve all material fact issues and the trial judge erred in sustaining the motion for summary judgment.

For these reasons, we reverse the judgment of the district court; overrule the motion for summary judgment; and remand the case to the district court for further proceedings consistent with this opinion. Costs of appeal are assessed to appel-lee.

SEXTON, J., dissents.

      . Louisiana Code of Criminal Procedure Article 215 provides as follows:
      A. A peace officer, merchant, or a specifically authorized employee of a merchant, may use reasonable force to detain a person for questioning on the merchant’s premises, for a length of time not to exceed sixty minutes, when he has reasonable cause to believe that the person has committed a theft of goods held for sale by the merchant, regardless of the actual value of the goods. The detention shall not constitute an arrest.
      A peace officer may, without a warrant, arrest a person when he has reasonable grounds to believe the person has committed a theft of goods held for sale by a merchant, regardless of the actual value of the goods. A complaint made to a peace officer by a merchant or a merchant’s employee shall constitute reasonable cause for the officer making the arrest.
      B. If a merchant utilizes electronic devices which are designed to detect the unauthorized removal of marked merchandise from the store, and if sufficient notice has been posted to advise the patrons that such a device is being utilized, a signal from the device to the merchant or his employee indicating the removal of specially marked merchandise shall constitute a sufficient basis for reasonable cause to detain the person.

      . Louisiana Code of Civil Procedure Article 966 provides as follows:
      The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiffs motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
      The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the date of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.

      . Even if plaintiffs’ unverified petition could be considered, the facts contained therein do not appear to describe an unreasonable detention; discourteous and abrupt perhaps, but not unreasonable.

      . Article 4 of the United States Constitution provides:
      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

      . Article 1, Section 5 Of the Louisiana Constitution of 1974 provides:
      Section 5. Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.

      . Art. 966.
      The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiffs motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
      The motion for summary judgment shall be served at least ten days before the time speci-fled for the hearing. The adverse party may serve opposing affidavits prior to the date of the hearing. The judgment sought shall' be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.


author:
BYRNES, Judge.
      GULOTTA, Judge, WILLIAMS, Judge, PER CURIAM. WILLIAMS, Judge,

text:
    SUCCESSION OF Cora M. Spearing DEMAREST.
    No. 12440.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Rehearing Denied Aug. 19, 1982.

      M.H. Many, New Orleans, for defendants-appellants.
    Lanny R. Zatzkis, Lynne W. Wasserman, New Orleans, for defendants-appellants.
    F.A. Little, Gold, Little, Simon, Weems & Bruser, Alexandria, for defendants-appel-lees.
    Matt J. Farley, Marian M. Berkett, Malcolm W. Monroe, Deutsch, Kerrigan & Stiles, New Orleans, in pro. per.
    Guy W. Smith, J.C. Herbert, Simon, Pera-gine, Smith & Redfern, New Orleans, for plaintiff-appellee.
    Before GULOTTA, BYRNES and WILLIAMS, JJ.
   BYRNES, Judge.

Cora Spearing Demarest died testate on February 12, 1976. Her husband, Frank, had predeceased her. Of the marriage between Frank and Cora, three children were born: Lucinda Demarest Payne, Donna De-marest Melvin, and Judson Demarest. Judson Demarest predeceased his mother and is survived by four children who are appellees in this matter: Jenny Demarest, Susan De-marest, Noel Demarest, and Donna Demar-est Fedderson. Donna Demarest Melvin is the mother of two children: Elizabeth Melvin Ivey and Martha Melvin Saik. All three are parties to this appeal. Lucinda Demarest Payne is the mother of two children: Sam K. Payne, Jr. and Frank Payne. Only Lucinda Demarest Payne and Sam K. Payne, Jr., however, are appellants in this matter. Lucinda Payne’s husband, Sam Payne, Sr., is the executor of the estate.

Four issues have been presented on appeal. The first issue is the interpretation of a codicil in olographic form dated March 3, 1971. The second issue pertains to the payment to be made to Sam K. Payne, Jr. for accountancy work done in conjunction with the succession of Cora Spearing Demarest. The third issue deals with the appropriateness of the attorneys’ fees awarded to succession attorneys, Deutsch, Kerrigan & Stiles [hereinafter “DKS”]. The fourth issue relates to the fitness of the executor and whether such allegations as have been presented to this court are grounds for his removal.

March 3, 1971 Codicil

A codicil in olographic form dated March 3, 1971, was executed in proper form by the deceased. The codicil stated in pertinent part:

“Before my succession is divided equally among my children, and/or their heirs, where applicable, I desire that the disposable portion of my succession be divided equally among my surviving grandchildren. It is my intention to reduce by means of this codicil the inheritance of my children, and/or their heirs where applicable, to the forced portion required by law.”

The appellant contends the deceased wanted to leave the children of Judson De-marest only their interest in the forced portion accruing to them through representation of their deceased father and leave the disposable portion of the estate to the children of Lucinda Payne and Donna De-marest Melvin. The appellees contend that the deceased left the disposable portion to all grandchildren and the forced portion to her two surviving children and four grandchildren by way of their appearing through representation of their late father.

It is well settled that if the language of a will is unambiguous on its face, such language will irrebutably be presumed to be the intention of the testator. Louisiana Code Article 1712 states:

“In the intrepretation acts of last will, the intention of the testator must principally be endeavored to be ascertained, without parting, however, from the proper signification of the terms of the testator.”

In Succession of Martin, 262 So.2d 46 (La.App. 1st. Cir. 1972), the court stated:

“The court must interpret the will as written and give effect to what the testator said, not what the the court thinks the testator intended to say. In such instances, the express and not probable intent of the testator must be determined by the court.”

We believe that the trial court was correct in interpreting the codicil to divide the disposable portion of Mrs. Demarest’s estate equally among the eight grandchildren. Michael Little, the first attorney of record for the succession, was present at the drafting of the codicil. He testified at trial that the intention of the testator, Cora De-marest, was to treat all eight of her grandchildren equally. Little further testified that tax considerations motivated Mrs. De-marest's decision to execute this codicil to the will. Little advised Mrs. Demarest that rather than write a new will, it would be easier for her to execute a codicil to her present will. Upon ascertaining Mrs. De-marest’s intent, Little drafted the codicil and took it with him to Mrs. Demarest’s house the day of the signing of the codicil. In front of Little, Sam K. Payne, Sr., Sam K. Payne, Jr., and other witnesses, Mrs. Demarest transcribed the codicil in her own handwriting and signed it. At that time there was no mention of any ambiguity by either Sam K. Payne, Sr., or his son Sam K. Payne, Jr.

We note, as did the trial court, the apparently self-serving testimony of both Sam K. Payne, Sr., and his son Sam Jr. If the intent of the deceased were so obvious at the time of the signing of the codicil, an attempt would have been made by either of them to straighten out this ambiguity. Two further points do not escape the notice of this court, the first being that Sam K. Payne, Jr. stands to benefit from this interpretation of the will. The second point is that the other grandchildren who would stand to benefit from this new interpretation of the codicil, namely Payne Jr.’s brother, Frank Payne and Donna Demarest Melvin’s two daughters have not appealed from the lower court’s decision as to the interpretation of the codicil. We feel that the trial court was correct in its interpretation of the codicil. Michael Little, as the attorney present at the drafting of the codicil, was aware of the wishes of the deceased and testified that he drafted this codicil so as to explicitly comply with the wishes of Mrs. Demarest.

REMUNERATION TO SAM K. PAYNE, JR.

The trial court did not award any fees to Sam K. Payne, Jr., for accounting services rendered to the succession. The record indicates that Sam Payne, Jr., was informally engaged by the succession of Cora Demarest to complete an accounting due the decedent’s predeceased husband’s succession. Payne, Jr., seeks to collect approximately $9,500.00 for his work. Decedent Cora Demarest was executrix of her late husband’s estate. As executrix, the decedent’s duties included preparing a final accounting of her husband’s succession, which was not done. After her death the legatees had to assess any potential liability to the Cora Demarest succession because of her failure as executrix to render a final accounting of her husband’s succession. This accounting was necessary to close Frank Demarest’s succession. Both appellants and appellees are in agreement that there was an accounting done by Sam Payne, Jr. which purported to clarify the problems with the succession of Frank De-marest, but at this point the agreement ends.

An affidavit by Robert P. Garic, Jr., an expert retained by Donna Demarest Melvin, her children, and the four children of Judson Demarest, stated that among other things he had reviewed and analyzed, was an accounting document prepared by Sam Payne, Jr. of the receipts and disbursements of the estate of Frank E. Demarest, from September 21, 1963 through December 13, 1965. Mr. Garic stated that most of the figures shown in the analysis are incorrect and misleading and do not represent a true picture of either receipts or disbursements of the succession of Frank Demarest. Garic also stated that the claimant should have known and should have informed all parties at least by the date of September 24, 1976, that it would be fruitless and certainly costly in the extreme for him to continue to attempt to balance or prepare a proper succession accounting from the incomplete data which were available to him. Garic further states that through his many years of experience as a Certified Public Accountant, duly qualified in the State of Louisiana, in his opinion, that a normal fee for the type of services rendered by Sam K. Payne, Jr. would range from $15.00 to $28.00 an hour for clerical services and $25.00 to $40.00 an hour for accounting services. The affidavit further states: “.. . [I]f the court should determine the services rendered had any value whatsoever in either the succession of Frank Demarest or Cora Demarest, which is highly questionable in as much as the accounting set out hereinabove does not give a true picture of either receipts or disbursements in either succession then, in the opinion of the affi-ant, claimant should be paid no more then $25.00 up to a maximum of $40.00 an hour for the hours spent by claimant through September 24, 1976.” [Emphasis ours]

Michael Little testified that he, thought that the $75.00 per hour fee asked for by Sam Payne, Jr. was rather high and stated that in his own practice his appreciation of the prevailing fees for this type of work by national firms was $60.00 per hour and that other accountants similarly situated as Sam Payne Jr. ranged anywhere from $20.00 to $40.00 per hour.

The work product of Payne, Jr. must be examined closely and completely to render a judgment as to proper compensation due him. Based on the testimony and evidence before us, this court concludes, that although the appellees have opposed payment to Payne, Jr. they did accept his report, and it did, albeit perhaps not according to normal standards, provide a benefit to the parties. Rather than remand the determination of fees back to the trial court, thus incurring more expenses to the succession, we make the determination based on the adequacy of the record before us. We award Payne, Jr. accounting fees in the amount of the $3,555.00 representing forty-four hours of clerical time at $18.00 per hour and 115 hours of professional time at $25.00 per hour. We used this lower figure based in part on information that Payne, Jr. worked out of his own home and had no one in his hire. These circumstances indicate little if any overhead incurred by Payne, Jr. in the preparation of the accounting. Coupled with the prevailing fees in this area, this court feels justified in applying the lower end of the spectrum when computing fees owed.

ATTORNEYS FEES DUE TO THE LAW FIRM OF DEUTSCH, KERRIGAN & STILES

Mrs. Demarest’s legatees, with the exception of the four grandchildren by her predeceased son, Judson have appealed the award of $25,147.49 in legal fees made to DKS, attorneys of the succession, by the trial court. DKS were the third attorneys of record for the succession. The first attorney was fired by the executor in December, 1976, and was paid $6,111.75, which included his out of pocket expenses and his professional billing rate of $75.00 per hour. Basically, all of the succession assets were liquidated during his tenure, except the property located at 1451 Exposition Blvd. and the furniture located within the house. The second attorney resigned, and her fee of approximately $11,000.00 was not paid. During her tenure, the house located at 1451 Exposition Blvd. was sold. She is now listed as a creditor on the tableau of distribution.

DKS signed a contract with the executor of the succession, that provided in part for the payment to DKS of $75.00 per hour to (1) “[P]ursue payment to the CPA preparing the final accounting in the succession of Frank Demarest of his fee by the parties responsible for preparation of same.. ” (2) “[Renegotiate the fee submitted by Sharon A.. Perlis to the succession,” and to (3) Close the succession as “promptly as possible in keeping with the best interest of the heirs”. When DKS resigned as attorneys for the succession (because the attorneys handling the estate moved to a new firm) on July 3, 1979, it had logged approximately 538.62 hours (Stipulation, May 28, 1960). The trial court, in its reasons for judgment, found among other things, that the fee was consistent with the letter of engagement, that the billing time of 538.62 hours was correct and authentic as to time spent by certain personnel, that although this was a simple succession there was protracted litigation based on differing interpretations of the codicil and the constant attacks on the executor, and finally that the legal services prepared by DKS were in proportion to and consistent with their duties as attorney as set forth by the letter of employment.

In affirming the trial court’s decision granting the $25,147.49 legal fees, we dismiss the argument of counsel that the contract of employment was terminated and therefore the fee recovery should be based on a quantum meruit basis. Counsel for appellant cites Simon v. Metoyer, 383 So.2d 1321 (La.App. 3d. Cir. 1980), which states:

“The courts of this state uniformly held that the appointment of an attorney is a mandate revocable at the client’s will. LSA-CC Art. 3028 ... The general rule is that a client has the right to discharge attorney with or without charge and upon discharging the attorney, the contract is at an end... Contract provisions is, therefore unenforceable ... however, at the time of his discharge, the attorney is entitled to compensation for services actually rendered on a quantum meruit basis.” (Emphasis Ours)

The Simon case can be distinguished from the present case in that the attorneys handling the succession, Mr. Redfern and Mr. Smith, were not fired by the succession. They did indeed change their association from DKS to a new firm and in that respect DKS now has no further claim of remuneration for the succession attorneys’ services. There is no need to reduce the claim to a quantum meruit amount as in reality there has been no discharge of the principal attorneys handling the succession. The billings for their time now come, not from their old firm DKS, but their new firm. While DKS could technically be deemed to have been fired as attorney of record, this is distinguishable from the fact situation that would arise if Redfern and Smith themselves had been fired. Redfern and Smith still handle the succession and the bill of DKS, for all practical purposes, would appear to be an interim bill for the time of Redfern and Smith up until the time they left the firm. Upon leaving, while still the attorneys for the succession, they processed their billing through their new firm. Thus we cannot reconcile appellant’s argument of reduction by quantum meruit based on actual benefits of the work performed by the discharged attorneys to the facts of the case.

During DKS’s tenure as attorneys for the succession, the only succession property disposed of was the furniture in the house. The heirs in opposition to the attorneys’ fees have stated that the attorneys have done absolutely nothing in regard to the letter of agreement signed between them and the executor. The attorneys of DKS maintain that they do not guarantee results, only that they will pursue the objectives to the best of their ability. While we agree that results are not guaranteed, we must state at this time that we are concerned that the attorneys have billed over 530 hours and the only concrete progress is that of the sale of the furniture which remained in the house at 1451 Exposition Blvd. DKS states in its brief to this court, “In the one and a half years that DKS had represented the executor, 538.62 hours of time had been registered against this file. If that time had been billed at $75.00 per hour, as the agreement provided, the fee would have been $40,396.50. This is not the fee that DKS is demanding or has ever demanded. Its claim is for $25,147.89.” DKS has not charged the succession, as the agreement provided, $75.00 per hour for every person working on the file. It is quite clear to this court from the face of the agreement that the executor in no way intended that this $75.00 per hour charge would pertain to every court runner or paralegal that DKS would have working on the case. Arguably this could be considered an across the board charge for all attorneys working on the case. It is inconceivable, however, that the executor would sign this contract realizing that the $75.00 per hour charge would pertain to all employees of DKS. DKS has recognized this and in their briefs have made it very clear to the court that they have already reduced their fee by over $15,000.00. DKS maintains that this is a sufficient reduction and that the appellate court should affirm the lower court’s ruling which approved the fee.

In reluctantly allowing this fee to stand, we do note that absent any claims of fraud or duress or other improprieties, a contract between two parties of equal bargaining power must be given full accord in the courts. DKS was acting on the advice and request of their client, Sam K. Payne, Sr., the executor and fiduciary, of the succession of Cora Demarest.

REMOVAL OF THE EXECUTOR, SAM K. PAYNE, SR.

A rule to remove the testamentary executor (filed in November of 1978) was dismissed in June, 1979, by the trial court judge. Certain allegations of mismanagement and breaches of fiduciary duty surfaced at this hearing, among them as follows: (1) The alleged failure to perform duties imposed upon him by law by order of the court; (2) the alleged failure and refusal to file an accounting in these proceedings, and only upon and after rule compelling the same; (3) the failure to invest substantial succession funds and the unauthorized expenditure of succession funds; (4) the advancement of funds without the authority, approval or knowledge/of the court; (5) the refusal to close out the succession as soon as possible; (6) the employment of the son, Payne, Jr., as an accountant and as custodian or guard for the premises at 1451 Exposition Blvd.; (7) the alleged inability to dispose of the assets of the succession in a timely and prudent manner, more particularly, the furniture and property located at 1451 Exposition Blvd.; and (8) the manner of liquidation of PMC Corp., which the court understands represents a substantial portion of the assets of the succession.

From the opening, of the succession through the date of the hearing on removal of the testamentary executor, no annual account was filed timely. The first annual account, however, was only three days late. In the matter of the second annual account, for the year 1977, a motion to compel its filing was filed with the court on February 16, 1978. Although an extension was obtained on March 31, 1978 by then-counsel DKS, the actual accounting for the year 1977 was filed on November 15, 1978. As to the third annual accounting, a letter dated February 20, 1979 requesting its filing was sent by appellant. No accounting was filed, and a rule to compel an accounting for 1978 was then filed on March 24, 1979.

The executor, by filing the annual account removed this particular cause for his removal, but the point is made that the legal fees incurred were an unnecessary expense borne by both the succession and the individual heirs.

During this period of time, all heirs and legatees except the Payne family, repeatedly protested the continuing retention of the furniture and the failure and refusal of the executor to sell or otherwise dispose of it. An auction was set for June 24 — 26, 1977 but never took place because it was opposed by Sam Payne, Jr., acting as agent for his mother. In the letter of opposition, an offer of $19,000.00 for the entire contents of the home was made. This was rejected, but not before the executor had circulated it to all the heirs for their approval. Although this is the proper procedure, we must question the dilatory actions of the executor. From the evidence before us it appears that this offer of $19,000.00 was so ridiculously low that it would have been in the interest of the succession had Payne rejected it summarily and proceeded with the auction, thus saving the succession the expense of prolonged storage. This court does note that when the auction did take place, the gross revenue was about $60,000.00 which gave a net refund of approximately $48,000.00 received for the furniture in the house. We will hypothesize no further on the motives surrounding the auction except to say that the hints of self-dealing presented here, albeit not in themselves evidence of improprieties, do indeed once again, seriously raise the questions of the executor’s true alliance. While a mere conflict of interest in itself does not warrant removal, when this conflict becomes such that it is actively tainting the administration of the succession, removal of the executor becomes necessary.

As a result of Payne Jr’s, objection, no auction did in fact take place until after the sale of the house by his mother to a third party in August of 1978. And so, Sam K. Payne, Jr., during the period of August 22, 1977 until approximately August 19, 1978, was being paid $25.00 a day out of the succession funds, by his father, the executor, to guard property that he himself had kept from being auctioned. The furniture during this period was located in the 1451 Exposition Blvd. residence now owned by his mother.

It is the appellant’s position that the litigation resulting from the actions of the executor have caused the cost of legal services to escalate beyond all reason. To date, the total fees paid and authorized to be paid stand well in excess of $45,000.00. The descriptive list values the succession at approximately $350,000.00. In addition, what the executor cost the succession in monies already spent may not be recaptured except from the executor individually. This includes the $22,000.00 paid for guard services to his son Payne, Jr., the $10,000.00 storage charges paid for the furniture which should have been sold some two years before, and charges for professional fees of Payne, Jr., in the amount of $9,000.00, the amount now in contest, which Sam Payne, Sr., states unequivocally that he intends to pay if he remains executor of the estate. In addition, Sam Payne, Sr., is attempting to collect a $15,000.00 charge for executor of the estate well above the 2 and xh% statutory fee provided. Appellants argue that the executor has favored his family over the other legatees and heirs of the succession. Additionally it is submitted, and we do agree, that the sums he has paid, or has tried to authorize the succession to pay to his son Sam Payne, Jr., are far in excess of the reasonable compensation due for the work actually done.

The hiring of Payne, Jr. by his father to guard the furniture in the house disturbs us. Twenty dollars a day seems a bit exorbitant to this court. If we were to multiply that figure times 365 days, the yearly cost of guard service would be $7,300.00. Similarly, if we were to use the higher figure of $25.00 per day the yearly rate would be $9,125.00. It would appear to this court that the executor, acting as fiduciary, should have examined other avenues in order to find a more economical way to obtain protection for the furniture in the house. While this may be the going rate for a stationary guard, this court seriously questions the need for such protection, especially when one considers the many neighborhood services now available. We further question the amount of time spent by Payne, Jr. in guarding the premises. During this time he maintained a residence on Robert St. He was married and there is no indication that he lived at 1451 Exposition Blvd. There is no evidence before this court as to the amount of time actually spent, if any, by Payne, Jr. in guarding the Exposition Blvd. house. Clearly it appears that no more than a few hours each day were actually spent by Payne, Jr. on the premises. We also note that nowhere is it clear in the record that the executor did inquire as to the availability or feasibility of any alternative and cheaper means of providing guard service.

This court takes note that the succession executor Sam K. Payne, Sr. has not worked since 1967. For all intents and purposes Mr. Payne was the manager of the Frank Demarest estate. Although Cora Demarest was the named executrix of her late husband’s estate, she did whatever her son-in-law told her. She followed his advice in all business matters. While it is not clear whether an explicit power of attorney was ever given to Mr. Payne, the record reflects that Mr. Payne did indeed write checks and handle other business matters arising from the succession of Frank Demarest. The exchanges in the transcripts which form a large portion of this record indicate to this court that from 1967 forward, Mr. Payne’s sole occupation was that of administering the affairs of his mother-in-law.

The descriptive list filed in the court June 7, 1976 lists the assets of this succession as approximately $350,000.00. Due to the size of this succession, this court is concerned at the amount of fees already incurred by the succession. DKS claims their fee to be $25,-147.49. Michael Little, the first attorney for the succession, was paid $6,111.75 as his fee plus an additional $131.50 for costs. Sharon Perlis, the second attorney for the succession, has a claim against the succession for her fees and cost totaling $11,-784.00. Payne, Jr. received $22,000.00 for guard service and an additional $6,500.00 for the fiduciary return. The above expenditures total $71,674.74 and do not include any of the out-of-pocket expenses such as, the storage costs incurred by the executor for the furniture. When all of the incidental fees and other costs are added into this, the cost of the succession to date well exceeds one-third of the total value of the succession. This alone indicates a serious mismanagement and breach of fiduciary duty owed to the succession by the executor. This succession is not complex. It is an extremely simple succession, complicated by much in-fighting among the heirs, due in part by the actions of the executor. Additional costs, although not to be paid out of the succession but to be paid by the heirs themselves, include all of the attorneys’ fees incurred by these heirs in attempting to hold the executor to the standard of care owed by him to the succession.

This court is especially concerned with the amount of attorneys’ fees caused by the executor and now owing DKS. The executor, from the underlying tone of the record, appears to this court to have taken a “win at all cost” attitude when dealing with his fight among the other heirs. Such a cavalier attitude has no place and is inconsistent with the fiduciary nature of the executor’s position. The executor takes the position that everything he did was opposed by the heirs and that he had no choice but to engage legal counsel to meet such opposition. The executor’s bellicose relationship with the legatees and his wasteful misuse of counsel’s time has caused the succession to be depleted by well over one-third of its assets and no doubt it will be depleted even further if this conduct is not brought to a halt immediately.

On July 24, 1978, a judgment was signed ordering disbursement of $250,000.00 of the estate money, minus $41,666.67 (this amount being in dispute due to the differing interpretations of the codicil) to be paid no later than August 7, 1978. On August 14, 1978 a contempt rule was filed because there was no distribution as of that date. On August 24, a motion to distribute funds to Sam Payne, Jr., and Mrs. Sam Payne, Sr., was filed in court. There is no evidence of any further distributions in record. This court does indeed wonder why the distribution was made to the executor’s wife and son and no other distributions are evidenced in the record to any of the other heirs.

The matter of the interpretation of the codicil as discussed supra, seems to be another attempt by the executor to place his family in a better position than they would have been otherwise.

Counsel for the executor has pointed out that according to past case law the executor has done nothing to warrant his removal. We find a major flaw in this premise. Dealing strictly with the law as applied to the facts, we can come to no other conclusion than that the executor has breached his fiduciary duty to the succession. Article 3191 of the Code of Civil Procedure states: That the “... [S]uccession representative is the fiduciary with respect to the succession ...” The word “fiduciary” was succinctly defined by the State Supreme Court in State v. Hagerty, 251 La. 477, 205 So.2d 369 (1978):

“The word ‘fiduciary,’ as a noun, means one who holds a thing in trust for another, a trustee; a person holding the character of a trustee, or a character analogous to that of a trustee, with respect to the trust and confidence involved in it and the scrupulous good faith and candor which it requires; a person having the duty, created by his undertaking, to act primarily for another’s benefit in matters connected with such undertaking. Also more specifically, in a statute, a guardian, trustee, executor, administrator, receiver, conservator, or any person acting in any fiduciary capacity for any person, trust, or estate ...” 36A C.J.S. Fiduciary, p. 381.

We believe that applying the above law to the facts presented us can lead to no other conclusion but that the executor breached his fiduciary duty to the succession and must be removed. We have determined here that the fiduciary standard was not met. The Supreme Court in Succession of Houssiere, 247 La. 764, 174 So.2d 521 (1965), stated:

“We do not subscribe to the view ... that cases of removal for alleged mismanagement by fiduciaries should be decided on the ascertainment of legislative policy. Rather, we think the issue should be adjudged on whether the act or acts complained of constitute a mismanagement of the estate.”

The Houssiere case, in our opinion, sets forth the correct application of the law as it stands right now, although the result reached is different from, and the facts of that case are not consistent with, the facts of the present case.

We are aware that the executor may not be removed because of the late filings of an annual report; but the fact that he was consistently late in filing of these reports, thus necessitating much litigation and attorneys’ fees to force the filing, is a serious breach of the duty owed to the succession.

There is a strong undertone of mistrust here which we cannot say is unwarranted. Fiduciaries may not place their own interest before that of the succession. We find evidence in the record that the first attorney, Michael Little, was so worried about the actions of the executor that he sent a letter outlining his complaints to the executor. The heirs were rightly incensed over the hiring of the executor’s son for guard services. These fees were far in excess of what a prudent administrator should have incurred. Michael Little, the first attorney for the succession, testified that his estimated total fees would have been approximately $20,000.00. Due to the executor’s inability to make effective use of counsel, the succession will possibly be liable for triple that amount, which is another example of the executor’s mismanagement. For those reasons, we find it necessary to remove Sam Payne, Sr. from his position. We remand to the lower court for the appointment of an administrator in order that the succession can be properly closed.

DECREE

We therefore decree that the lower court’s interpretation of this codicil is affirmed. We further affirm the trial court’s determination as to the amount of attorneys’ fees due to DKS. We set the amount of accountancy fees at $3,335.00. We reverse the lower court’s decision concerning the removal of the executor Sam K. Payne, Sr., and hereby decree that he is to be removed as executor of the estate effective as of the date this opinion is handed down and remand to the trial court for the naming of an administrator, with the stipulation that bond not be dispensed with. All costs of this appeal to be borne by the body of the succession.

AFFIRMED IN PART; REVERSED IN PART; AMENDED IN PART.

GULOTTA, J., concurs.

WILLIAMS, J., concurs with reasons.

GULOTTA, Judge,

concurs.

I concur in the result.

WILLIAMS, Judge,

concurs.

I agree with the result. The administration of a succession is not for the benefit of the executor or lawyers acting under his direction, but rather its true purpose is to implement the desires of the testator [in this case, testatrix] as promptly and efficiently as possible. Furthermore, the fiduciary duty owed by the executor is owed to all of the heirs of the succession equally, not a select few.

ON REHEARING

PER CURIAM.

Sam Payne Sr. and his son Sam Payne Jr. are both before this court asking for a rehearing on certain portions of our original decision in this appeal. Sam Payne Sr. is asking for a rehearing of our decision to remove him as executor for the estate, and Sam Payne Jr. is asking for a rehearing on this court’s interpretation of the codicil, our determination of his accountancy fees, and our determination of the attorney’s fee due the law firm of Deutsch, Kerrigan and Stiles. The rehearing is denied. We do, however, feel compelled to respond to certain portions of these petitions for rehearing in order to clarify and amplify our original opinion.

Sam Payne, Jr. contends that this court failed to give weight to the testimony introduced at trial that neither he nor Sam Payne Sr. were present with Mrs. Demarest when the will was drafted and therefore were unable to voice their concerns that the will was ambigious. We acknowledge that there is no evidence of their presence at the drafting of the will. The will, however, is not contested. The interpretation of the codicil to the will is at issue. This court directs appellant’s attention to the transcript of the proceedings taken before the Hon. George C. Connolly, Jr. on Tuesday April 24, 1979, in which on page 14, the following colloquy took place:

Question: Are you familiar at all with the confection of the codicil by the decedent? The making of the codicil by the decedent?
Michael Little: Yes, I was present at a meeting, I was present at the execution of the codicil and I had discussed its contents with Mrs. Demarest and Mr. Payne, Sr. and Mr. Payne, Jr. Prior to its confection.
Question: Let’s get back to its confection. What caused you or precipitated you to be in the place where the codicil was executed?
Michael Little: I was there at the request, as I understood by Mr. Payne, Sr., the request made to me by Mr. Payne, Jr... .

Further, on page 16 of the transcript, the following exchange occurred:

Question: Did you have any oral discussions with her?
Michael Little: Yes, we sat in her parlor prior to the execution and discussed what we were going to do and then walked in the dining room, and she sat at the head of the dining room table and I sat to her right and Mr. Payne Sr., sat to her left, and Mr. Payne Jr. remained standing during the execution." [Emphasis ours]

Clearly both Sam Payne and his son Sam Jr., were present at the signing of the disputed codicil as was Michael Little. This court can see no mistake in our original determination of the proper weight given to all evidence in testimony concerning the interpretation of the codicil.

We agree with Sam Payne Jr. that the weight of the evidence does indeed compel our conclusion that Sam Payne Jr. was engaged by the Succession of Cora Demarest to perform certain accounting services with respect to that succession. The formality or informality of the engagement is inconsequential inasmuch as it is not determinative of our awarding of fees. We have accepted the fact that Mr. Payne Jr. was indeed engaged in performing accounting services for the succession and have awarded what we feel is the proper fee for said services. Throughout the hearing of April 24, 1979, Robert P. Garic Jr., a C.P.A., was waiting to testify with regard to the accounting fee of Sam Payne Jr. He did not testify, the trial court being of the belief that his testimony was not needed. When the attorney for Sam Payne Jr. was notified of the intent of opposing counsel to place a written statement of Garic in the record in lieu of his oral testimony he responded “You can put it in in the form of an affidavit.” This affidavit was filed in the record approximately fourteen days later. This court feels that this affidavit is properly before this court in the form of a proffer. This statement in no way affected our determination of the actual engagement of Sam Payne Jr., by the succession inasmuch as that engagement had been determined to exist earlier in the record by various colloquies among counsel. This statement along with various evidence of the work product of Sam Payne Jr. was used primarily in our determination as to the amount of fee to be paid for the accounting services.

Our reference in the original opinion to the value of the succession was correct. The descriptive list in the record before us valued the succession at approximately $350,000.00. An amended descriptive list is now properly before this court. This list, although properly filed at the district court level, was not before this court prior to the petition for rehearing. This amended descriptive list lists the succession assets at $499,657.53. Even considering the amended descriptive list, this court is still of the opinion that the administrative cost of this relatively simple succession are still excessive.

WILLIAMS, Judge,

concurs in part and dissents in part.

I respectfully concur in part and dissent in part from the decision of the court not to grant a rehearing.

I agree that a rehearing should not be granted on those issues outlined by the majority.

I would, however, grant a rehearing to reconsider the appropriateness of attorney’s fees awarded to Deutseh, Kerrigan & Stiles.

      . The house was purchased by Lucinda Payne on August 22, 1977.


author: KLIEBERT, Judge. PER CURIAM.

text:
    Wanda Falcon WICKER, Widow of Ruben Ivan Wicker, Sr., Individually and as Natural Tutrix For the Use and Benefit of Her Minor Children, Keith Michael Wicker, Helen Irene Wicker, and Rhonda Ann Wicker v. The COCA-COLA BOTTLING COMPANY, Mid-West Machinery Movers, Inc., Phillip Foto, W. M. Davis, G. J. Schuth, Russel Pat White, Bob Simpson, Eugene Abadie, Owen Trayhan, Nolan Sharpe, Rufus Fisher, A. B. C. Insurance Corporation and X. Y. Z. Insurance Corporation. William L. SPARACELLO v. The COCA-COLA BOTTLING COMPANY, Mid-West Machinery Movers, Inc., Phillip Foto, W. M. Davis, G. J. Schuth, Russel Pat White, Bob Simpson, Eugene Abadie, Owen Trayhan, Nolan Sharpe, Rufus Fisher, A. B. C. Insurance Corporation and X. Y. Z. Insurance Corporation.
    Nos. 5-39, 5-40.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 8, 1982.
    Rehearing Denied Sept. 22, 1982.

      John H. Brooks, Gretna, Robert W. Drouant, Heisler & Wysocki, New Orleans, for plaintiffs-appellants.
    Monte J. Ducote, New Orleans, Stephen Huber and Claude Vasser, Metairie, Frederick S. Kullman, Kullman, Lang, Inman & Bee, New Orleans, James Demopoulos, Chicago, Ill., Frederick R. Campbell, McGlin-chey, Stafford & Mintz, Michael S. Guillory, New Orleans, for defendants-appellees.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   KLIEBERT, Judge.

William L. Sparaeello and Ruben Ivan Wicker, Sr., co-employees of Mid-West Machinery Movers, Inc. (hereafter Mid-West) were involved in an accident on November 3, 1972 on the Dauphin Island exit of 1-10 in the State of Alabama. At the time of the accident, Wicker was operating and Sparaeello was a passenger in a White Tractor towing a trailer owned by the Coca-Cola Company. The maintenance and operation of the tractor and trailer was the responsibility of Mid-West under a contrae-tual agreement entered into with Coca-Cola. The trailer was loaded with drums of Coca-Cola syrup and a fork lift truck by employees of Coca-Cola in Jefferson Parish. Ruben Wicker expired on the date of the accident from injuries alleged to have happened in the accident.

In October, 1973, Sparacello and the heirs of Wicker filed almost identical suits in the United States District Court for the Eastern District of Louisiana in New Orleans against Coca-Cola, Mid-West, the State of Alabama and the Alabama Highway Department and various unnamed insurance companies characterized as “A.B.C.” or “X.Y.Z.” insurance companies. The suits alleged that as the truck entered the exit ramp, due to improper loading, the load on the trailer shifted causing the tractor-trailer to go through the railing and to fall thirty or forty feet to the ground.

While the suits were still pending in the U. S. District Court, on June 11, 1974, Spar-acello and the heirs of Wicker filed similar suits (subsequently consolidated) in Jefferson Parish containing similar contentions to that made in the federal actions but brought against different defendants. In the state court actions the suits excluded the State of Alabama and its Department of Highways, but included as additional defendants employees of Coca-Cola and Mid-West, as well as insurance companies referred to as A.B.C. or X.Y.Z. insurance corporations. In time, the federal actions were dismissed as to all named defendants on motions asserting immunity based on the Louisiana Workmen’s Compensation Act or in the case of the State of Alabama, sovereign immunity. Additionally, Mid-West and Coca-Cola were dismissed from the Jefferson Parish suit on exceptions grounded in the immunity provided by the Louisiana Workmen’s Compensation Act.

Bob Simpson and Owen Trayhan, both employees of Mid-West and defendants in each of the state court suits, filed ex parte motions to dismiss the suits against them for lack of prosecution. The other defendants in the consolidated suits filed an exception of prescription in both suits. The trial judge dismissed both suits against those defendants on either the motion to dismiss for lack of prosecution or the exception of prescription. It also dismissed the suit against General Life and Accident Fire and Life Assurance Corporation, Ltd., who had sought to be substituted as a named defendant for A.B.C. or X.Y.Z. insurance corporations.

Devolutive appeals were brought by Sparacello and the heirs of Wicker from the judgments dismissing the defendants. On the appeal, Sparacello and the heirs of Wicker contend: (1) the trial judge erred in upholding the exception of prescription because the pendency of the federal tort claim interrupted prescription as to the defendants here even though they were not parties to the federal action, and (2) the court erred in dismissing the suit against the defendants Bob Simpson and Owen Trayhan for lack of prosecution. We disagree and affirm the trial judge.

ON THE EXCEPTION OF PRESCRIPTION

The plaintiff-appellant contends the federal suit interrupted prescription as against the other defendants and cites as one authority LSA-C.C. 2097 which provides that “a suit brought against one of the debtors in solido interrupts prescription with regard to all". The defendants-appellees, however, point out that since the named defendants in the federal suit had an immunity from liability, they could not be in solido liable with their employees and cite Gibson v. Exxon Corporation, 360 So.2d 230 (1st Cir. 1978), writ denied 362 So.2d 575, as authority for their contention. In response, appellants contend the Gibson decision has been repudiated by the Supreme Court in Baker v. Payne and Keller, 390 So.2d 1272 (La. 1980). We disagree.

The distinguishing feature in the Baker case from that involved in the Gibson case is the fact that in Baker, Maryland Casualty was a named defendant in the original suit. Rather than dismissing Maryland, the trial judge, under La. CCP Art. 1153, permitted an amendment to the original petition. The amendment alleged that Maryland was the insurer of employees of Payne and Keller as well as of Payne and Keller. On that factual basis the Supreme Court reasoned that since the essence of interruption of prescription by the filing of a suit is notice and since Maryland clearly had notice of the plaintiff suit against it as well as of the occurrence upon which the demand was based, the running of prescription as to Maryland was interrupted.

Notwithstanding the Baker case the rationale of the Gibson case is still applicable here. Since the named defendants in the federal suit were immune from liability to the injured plaintiff, they could not be in solido liable with the defendants named in the subsequent state action. Under the provisions of LSA-C.C. 2097, for prescription to be interrupted by the filing of a suit, there must be in solido liability between the debtors. Absent in solido liability, LSA-C.C. 2097 has no application.

The plaintiff-appellant also argues that the filing of the federal suit interrupted prescription because the same cause of action was alleged in the federal and state court actions and cites LSA-R.S. 9:5801 as authority for his contention. This statute provided in pertinent part as follows:

“All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, ... by the commencement of a civil action in a court of competent jurisdiction and in the proper venue ...”

This contention is without merit. It is now settled law that the term “all defendants” as used in LSA-R.S. 9:5801 implies defendants who are named in the petition relied upon for the interruption. Majesty v. Comet-Mercury-Ford Co. of Lorain, Mich., 296 So.2d 271 (La.1974).

The trial judge properly maintained the preemptory exceptions of prescription for in the absence of solidary liability between an unnamed defendant and a named defendant, the petition interrupts prescription only as to defendants named in the petition relied on for the interruption. Martin v. Mud Supply Co., Inc., 239 La. 616, 119 So.2d 484 (La.1960).

ON THE ABANDONMENT

Although Simpson and Trayhan were named as defendants in the state court action filed on June 11, 1974, Trayhan was never served and Simpson was not served until September, 1980, some six years after the suit was filed. The trial judge apparently granted their ex parte order for dismissal on the basis of LSA-C. C.P. 561 which provides in pertinent part as follows:

“An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five (5) years. This provision shall be operative without formal order, but on ex parte motion of any party or other interested person, the trial court shall enter a formal order of dismissal as of the date of its abandonment.”

Whatever the reason for appellants’ tardiness in serving defendants Simpson and Trayhan, it is clear action taken against other defendants in the suit does not satisfy the “any steps” requirements of the article. While it is true, as appellants assert, that “any steps” in prosecution of a lawsuit will prevent its abandonment, the “step” must take place as to each defendant.

In Murphy v. Hurdle Planting and Livestock, Inc., 331 So.2d 566 (1st Cir. 1976), writ refused 334 So.2d 434, the First Circuit faced a similar situation to the one present here. The plaintiff in Murphy sued two defendants and shortly afterwards effected service on one defendant. After five years had elapsed, service was effected on the second defendant. The First Circuit held “any steps taken to hasten the matter to judgment are ineffective as to defendants not served”. We agree.

By operation of law, i.e., LSA-C. C.P. 561, the suits against Simpson and Trayhan were abandoned for non-action during the five years which elapsed from the time of their filing. Although it is true as asserted by appellants that a suit can interrupt prescription even though not served, it is also true if no step is taken in its prosecution within five years of its filing, it is considered abandoned. King v. American Motorist, 295 So.2d 26 (La. App. 4th Cir. 1974).

Appellants also contend they were denied due process because no evidentiary hearing was held on the motion to dismiss. We note, however, that there were no contested issues of fact. The record shows the plaintiffs took no procedural steps against the particular defendant within the five year period. Further, notwithstanding the trial judge’s authority by statute to proceed ex parte, the appellant was given an opportunity to file a brief in opposition to the motion to dismiss. Hence, he was not denied due process by a dismissal without an evidentiary hearing.

For the reasons stated above, the judgment of the trial court dismissing the suits on the exception of prescription and abandonment are affirmed. Appellants to pay all costs of appeal.

AFFIRMED.

Before CHEHARDY, KLIEBERT and CURRAULT, JJ.

ON APPLICATION FOR REHEARING

PER CURIAM.

In their application for rehearing, the Wicker heirs correctly point out that the appeal in the Wicker case which was consolidated with the Sparacello case did not involve the issues relative to the exception of prescription. Accordingly, the original opinion in the consolidated case is amended and corrected to show that that portion of the opinion headed “On the Exception of Prescription” applies only to the Sparacello case. In all other respects, the application for rehearing is denied.

REHEARING DENIED.

      . W. M. Davis, G. J. Schuth, Russel Pat White, Phillip Foto, Rufus Fisher and Nolan Sharpe were alleged to be agents, officers or employees of Coca-Cola.

      . Eugene Abadie, Bob Simpson and Owen Trayhan were alleged to be agents, officers or employees of Mid-West.

      . See Mitchell v. Zeringue, 389 So.2d 910 (4th Cir. 1980); Rogers v. Payne & Keller of Louisiana, Inc., 392 So.2d 109 (1st Cir. 1980), writ denied 396 So.2d 1327 (1981).