author: SHARP, Judge.

text:
    In the Matter of the SCHOOL BOARD OF VOLUSIA COUNTY, Florida, a Florida Corporation, Appellant, v. FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, Unemployment Appeals Commission, and Peromnia Grant, Appellees.
    No. 79-490.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 1981.

      Richard S. Graham, Daytona Beach, for appellant.
    James R. Parks and Harden King, Jr., Tallahassee, for appellees.
   SHARP, Judge.

Appellant, the School Board of Volusia County, urges that the appeals referee (who was affirmed by the Unemployment Appeals Commission) erred in making two findings concerning the status of a teacher’s claim for unemployment compensation. We dismiss this appeal sua sponte because it is “moot”.

The teacher, Peromnia Grant, was employed by appellant for the 1978-79 school year. In May of 1979, she was reappointed for the next school year, but because of her pregnancy, she requested a maternity leave of absence for one year. Appellant granted her request, and she commenced her leave of absence (without pay) in May of 1979. In July of 1979, Grant filed a claim for unemployment compensation for the time period of June to July 1979.

On August 8, 1979, the claims adjudicator made three determinations: (1) that Grant was “totally unemployed” during the claims period; (2) that she was not “disqualified” to receive benefits because she did not leave her employment “without good cause attributable to her employer”; but (3) that she was ineligible to receive benefits during the claim period because she was “not available for work.” Appellant appealed the first two determinations, and the appeals referee and commission affirmed them. No one appealed the third determination. Appellant expressed surprise at its existence, and counsel for appellant told us at oral argument he first learned of it upon reading Appellee’s Answer Brief and Appendix. Since it is not officially a part of the record in this case, but clearly should be, sua sponte we order that the August 8, 1979 Notice of Claims Determination finding Grant “not available for work” be made a part of this record.

The first two determinations appealed to us are moot in view of the third determination by the claims adjudicator that Grant was not “available for work” and “not making an active search for employment.” In order to be entitled to receive benefits under Chapter 443, a person must have “registered for work at, and thereafter continue to report at the division” and be “able to work” and “available for work.” By her own admissions in the record, Grant was not able to work nor actively seeking employment during the claims period. She could not receive unemployment benefits under these circumstances and the correctness or incorrectness of the first two determinations no longer matters. We do not have jurisdiction to render advisory or moot opinions under these circumstances. Board of Public Instruction v. Budget Commission of Orange County, 249 So.2d 6 (Fla.1971); State v. Board of Public Instruction of Orange County, 216 So.2d 195 (Fla.1968); 3 Fla.Jur.2d Appellate Review § 286 (1978). Accordingly this appeal is

DISMISSED.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.

      . § 443.03(12), Fla.Stat. (1979).

      . § 443.06(1), Fla.Stat. (1979).

      . § 443.05(1)(c)(1), Fla.Stat. (1979).

      . Fla.R.App.P. 9.200(f).

      . § 443.05(l)(b), Fla.Stat. (1979).

      . § 443.05(l)(c)(l), Fla.Stat. (1979).

        .Monsanto Company v. Fla. Dept. of Labor & Employment Security Division of Employment Security. 371 So.2d 594 (Fla. 1st DCA 1979).


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    Richard Allen DETER, Appellant/Cross-Appellee, v. Dinina D. DETER, a/k/a Judy D. Deter, Appellee/Cross-Appellant.
    No. 80-150.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 1981.
    James K. Freeland, P. A., Orlando, for appellant/cross-appellee.
    William Murrell, Jr., P. A., Orlando, for appellee/cross-appellant.
   COBB, Judge.

This appeal is dismissed on authority of S. L. T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974), and Florida Rule of Appellate Procedure 9.130(3).

The cross-appeal is stricken as untimely. See Fla.R.App.P. 9.110(b) and (g). We note, however, that this action is without prejudice to the right of the petitioner wife to challenge, by timely appeal after the continued contempt hearing is held, any action by the trial court erroneously placing upon her the burden of proof in regard to the ability to pay of the respondent, a burden which clearly is his. See Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976); Yandell v. Yandell, 160 Fla. 164, 33 So.2d 869 (1948).

FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.


author: DAUKSCH, Chief Judge.

text:
    Rosemary W. BRAGDON, Appellant, v. David C. BRAGDON, Appellee.
    No. 80-221.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 1981.
    Joe Teague Caruso, of Wolfe, Kirschenb-aum, Caruso, Mosley, Scott & Kabboord, P. A., Cocoa Beach, for appellant.
    Gilbert S. Goshorn, and Frank Griffith, Jr., Titusville, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal in a dissolution case from an order granting a “Motion for Review.”

This cause was first before the circuit court for a dissolution of the marriage between the parties and judgment was entered on April 19, 1977. An appeal from that judgment was taken and certain modifications to the judgment were mandated by the appellate court. The modification concerned the designation of payments from Mr. Bragdon to Mrs. Bragdon. Bragdon v. Bragdon, 363 So.2d 855 (Fla. 4th DCA 1978). The mandate in that appellate case was issued November 29, 1978, and on January 2,1979, the circuit court entered its “Amended Final Judgment Consonant with Mandate of Fourth District Court of Appeal.” This judgment amended the first final judgment entered April 19, 1977, and was entered to reflect the requirements of the appellate court and contained some minor changes in accordance with a stipulation between the parties.

On May 23, 1979, Mr. Bragdon filed a “Motion for Review” which specifically requested the trial court to reconsider its first judgment, as modified by the court of appeal, in accordance with a provision in that first judgment which provides “That during October, 1977, the Court shall review the circumstances of the parties at that time to determine whether the child support shall continue or whether the amount of the child support shall change at that time.” Mr. Bragdon said in his “Motion to Review” that he was prevented from filing it in October, 1977, because the case was on appeal and that, implicitly, he should be allowed to have the review now that the case was back from the court of appeal, even though October, 1977 had past. He also alleged “That said child support as set forth in the Final Judgment of April 19, 1977, is in excess of the needs of the minor child of the parties and does not take into consideration the Petitioner’s present ability and obligation to provide support.”

We shall consider this “Motion for Review” from two views. First that it is a vehicle by which the movant requests the court to reconsider its first judgment. Second, that it is a petition for modification of the first judgment. In considering the matter we remember the first judgment was appealed, modified and amended; and in none of these later proceedings was the “review” provision in the first judgment mentioned again.

First, the review provision is considered. This part of the final judgment is implicit and inherent in every judgment for dissolution of marriage which provides support from one party to another. Its inclusion in the judgment is rather redundant to the inherent authority of the court to modify support judgments but we take note of it because apparently the parties and the court, according to the briefs and record, felt this provision was primarily for the purpose of merely reconsidering its prior award and not solely for a modification due to changed circumstances. If this provision was for reconsideration, rather than modification, it is not an authorized order of the court and should not be enforced. Trial courts cannot act as their own appellate courts and review their decisions months after they are made. Nor should the parties be forced to set their life styles in accordance with court ordered support provisions and be faced with the constant insecurity as to how much they are going to pay and receive for support. The decision to change the support amounts was not made on changed circumstances but upon the judge’s (or judges’) change of mind as to what is best.

The only time a change in a court’s order for support payments is warranted or authorized is if the payor’s ability increases or decreases and/or the payee’s needs increase or decrease. Fox v. Haislett, 388 So.2d 1261 (Fla. 2d DCA 1980); Brown v. Brown, 315 So.2d 15 (Fla. 3d DCA 1975). Thus it is not proper for a court to set an amount of child support in a final judgment and then later change that amount without requisite proof of change of need and ability.

As to the second view we make of the “order providing for modification of final judgment,” we are impressed not only by the lack of evidence to support the order but also by appellee’s urging the order was “not based on changed circumstances, but rather the express provisions of [the judgment] . . . [which] contemplated a review approximately six months after the dissolution when the ‘dust settled’ and the financial realities of the parties became apparent.” Thus the modification was not authorized because, as both parties have agreed, the matter was not before the court for modification, but for “review.” Even if it was an authorized petition for modification, the evidence was contrary to the order, not to mention the insufficiency of the petition itself. All the evidence showed the husband’s ability to pay had increased along with the mother’s and children’s needs having increased, too.

We note parenthetically that the order on appeal was not entered by the same judge who heard the matter at final hearing and rendered the first judgment so that the review was not actually a reconsideration of the matter by the initial judge but was a review of one circuit judge’s order by another circuit judge. This also is not a recognized procedure when no substantial petition for modification is filed; therefore the motion to strike filed by Mrs. Bragdon should have been granted.

Lastly, the parties have told us, and the record supports their statements that the change in child support payments was predicated solely upon adherence to a formula devised by the trial judge to set support payments for all parties in cases heard by him. The use of a formula is appropriate to set general guidelines so that consistency and uniformity in amounts of support payments can be achieved. However, many variables exist in children’s needs, and parents’ needs and abilities to pay. A formula should not be blindly followed or strictly adhered to in any case, and it clearly provides no basis upon which to find a “change of circumstances” has occurred in a modification case.

Also on appeal is the denial by the trial court of an award of attorney’s fees for Mrs. Bragdon. Mr. Bragdon in his brief says it was proper for the judge to have denied the fees because

It was well known to Appellant and Ap-pellee and their counsel that the trial judge would apply the ‘formula’ referred to ... . Therefore, all of the services for which Appellant’s attorney requests payment could have been eliminated and the attendant costs reduced, had Appellant agreed to a judgment (sic) in accordance with the court’s established formula.

He then goes on to say her attorney’s services “were of little or no value.” We disagree as to the value of the attorney’s services and since we do not know the court’s reason for the denial of the fee award, we remand that matter to the trial court to reconsider the request for attorney’s fees in accordance with established legal criteria.

The order of modification is reversed and this cause remanded for the redetermination of the award of attorney’s fees for Mrs. Bragdon.

REVERSED AND REMANDED.

ORFINGER and SHARP, JJ., concur.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Mike BRANNON, Appellant, v. AUTO CENTER MANUFACTURING CO., Appellee.
    No. 80-363.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 1981.

      William D. Palmer and Christine K. Bilo-deau of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Orlando, for appellant.
    Joe Teague Caruso of Wolfe, Kirschenb-aum, Caruso, Mosley & Kabboord, P.A., Cocoa Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant appeals from a summary final judgment enjoining him from accepting competing employment.

Appellant had been employed by appellee and as a condition of his employment, he executed an agreement not to compete for a period of one year after termination. After leaving Auto Center Manufacturing Company on March 22, 1979, he accepted a position with a competing company. Appel-lee sued seeking a permanent injunction and damages arising from appellant’s breach of the agreement.

The trial court granted appellee’s motion for partial summary judgment and enjoined appellant from accepting employment with a competing company for a period of one year. The court retained jurisdiction to consider an award of damages, attorney fees and costs. Appellant filed his notice of appeal from the partial final judgment.

Appellant raises as error that the lower court improperly granted an injunction against him.

The injunction was entered on March 3, 1980, nineteen days prior to the date the non-compete agreement was to expire according to its own terms. Subsequently, appellee applied for an award of damages. At the hearing on damages, the parties stipulated before the court the terms of a settlement. The court recited that the terms of the settlement were set forth as a part of the final judgment. The final judgment for damages was entered awarding appellee $14,000; $3,000 of which were for attorney fees and $11,000 for “damages sustained by appellee as a result of the loss of profit and unfair competition of the appellant in violating the terms of the employment contract from the date of termination of employment up until the date of the entry of this final judgment.” No mention was made as to the disposition of the injunction. No appeal was taken from the damage judgment and no application was made to the trial court to cancel the injunction because of the settlement.

Appellant contends, in effect, that the lower court improperly granted the injunction against him because it cannot award damages for breach of the agreement and enjoin defendant for the entire contract period also.

While courts may award damages for breach of an agreement not to compete, the usual remedy is to grant an injunction. Miller Mechanical Ins. v. Ruth, 300 So.2d 11 (Fla.1974); Kenco Chemical & Mfg., Co. Inc. v. Railey, 286 So.2d 272 (Fla. 1st DCA 1973). Injunctive relief is the favored remedy because damages resulting from competition by the former employee are difficult to ascertain with the degree of certainty that is required; without an injunction against competition, the employer would be unable to enforce or receive the benefit of the agreement. Miller Mechanical at 13; Capelouto v. Orkin Exterminating Co. of Fla., 183 So.2d 532 (Fla.1966). Injunctive relief is also afforded by section 542.12(2), Florida Statutes (1979). A one year injunc-tive period of noncompetition after the contract period has expired has been held improper. See Royal Services, Inc. v. Williams, 334 So.2d 154 (Fla.3d DCA 1976). However, the Florida Supreme Court, in Capelouto approved an injunctive period of two years after the contract period had expired.

It is clear, however, that it is not proper to award damages for the breach and to enforce the entire contract. For example, it would be improper for the court to award all damages flowing from the breach of a construction contract and then require the contractor to build the structure. In an action for breach of contract, the aim is to award a sum which is equivalent to the performance of the bargain; the attempt should be to place plaintiff in the position he would have been had the contract been fulfilled. Ashland Oil v. Pickard, 269 So.2d 714 (Fla.3d DCA 1972).

In the case before us, it was error to enter a permanent injunction as opposed to a temporary injunction pending resolution of the question of damages.

We cannot determine whether this question has been rendered moot by settlement because of the absence of any reference to the injunction in the settlement which was made a part of the final judgment on damages. See, e. g., Dominion Properties v. Faruolo, 264 So.2d 94 (Fla. 4th DCA 1972). If the settlement covered all damages arising from the breach, the appeal is moot and the injunction is of no further force or effect. We therefore remand to the trial court to determine whether the stipulation of the parties constituted a settlement of all damages arising from the breach.

REVERSED and REMANDED.

COBB and SHARP, JJ., concur.


author: COWART, Judge.

text:
    STATE of Florida, Appellant, v. Thomas W. KERPER, Appellee.
    No. 80-483.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellant.
    Richard S. Rhodes, Orlando, for appellee.
   COWART, Judge.

After the defendant-appellee had been properly granted a continuance the State nolle prossed the criminal charges because of the unavailability of a State’s witness at trial and thereafter filed a new information charging appellee with the same crime based on the same facts. More than 180 days after the date appellee had been taken into custody under the original information appellee moved for discharge under the speedy trial rule, Florida Rule of Criminal Procedure 3.191. The trial court granted the discharge. We reverse.

By moving for and obtaining a continuance appellee took this case out of the operation of the speedy trial rule and the time limitations of the rule are reactivated only by the denial of his motion for discharge or by his subsequent demand for speedy trial. Batterworth v. Fluellen, 389 So.2d 968 (Fla.1980), State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971), State v. Bufford, 383 So.2d 928, 929 (Fla. 5th DCA 1980).

In Stevens v. State, 383 So.2d 1156 (Fla. 5th DCA 1980), this court held that when two charges arise from the same criminal conduct or episode, a waiver of speedy trial in the first prosecution, which was nolle prossed, was also a waiver for the second.

When appellee was granted a continuance the speedy trial rule, including the provisions of Florida Rule of Criminal Procedure 3.191(b)(2) relating to nolle prosequi, became inapplicable to his prosecution and remained inapplicable to the subsequent prosecution based on the same criminal conduct or episode. The trial court was in error in discharging appellee and the order of discharge is reversed and the cause remanded for further proceedings.

ORFINGER and FRANK D. UP-CHURCH, Jr, JJ„ concur.

      . Under Butterworth and Cullen this opinion acts as a denial of appellee’s motion for discharge and thus requires appellee to be brought to trial within ninety days pursuant to Florida Rule of Criminal Procedure 3.191(d)(3).


text:
    BARNETT FIRST NATIONAL BANK OF JACKSONVILLE, Florida, Appellant, v. Edward A. M. COBDEN, John P. Turney, and Ann Graham Nugent, Appellees.
    No. 80-499.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 1981.

      David F. Yedder of Wells & Vedder, Day-tona Beach, for appellant.
    Harold C. Hubka of Black, Crotty, Sims & Hubka, Daytona Beach, for appellees.
   FRANK D. UPCHURCH, Jr., Judge.

The Barnett First National Bank of Jacksonville appeals from a final order appointing a successor trustee for the John M. Cobden trust. We reverse.

The will of John M. Cobden, who died in November of 1979, contained a testamentary trust. A codicil to the will appointed Elizabeth Nugent Cobden (decedent’s wife) and Edward A.M. Cobden (decedent’s brother) as co-trustees and further stated:

Should either of said Executors or Trustees predecease me or fail to serve as . . . Trustee or having served they should then die, I do hereby appoint the Barnett First National Bank of Jacksonville, Florida as Successor ... Trustee to serve hereunder.

The initial co-trustees served until January 16, 1980, when Elizabeth was adjudicated incompetent. On February 5,1980, Edward Cobden petitioned the court to appoint John P. Turney as co-trustee.

The petition for appointment of Turney alleged that both Edward Cobden and Elizabeth Nugent Cobden served as co-trustees, both were presently living and because neither had failed to serve or died that the conditions precedent and necessary to invoke the succession of the Barnett Bank to the position of co-trustee had not occurred. It was Cobden’s position that Elizabeth's incompetency was not a “failure to serve” as that phrase is employed in the will. Following a hearing, the trial court entered an order appointing Turney as co-trustee.

Both appellant and appellee contend that the language of the will is not ambiguous, but each seriously urges that this “unambiguous” language be interpreted to achieve a different result. The bank urges that the language clearly reflects the testator’s intent to appoint it successor co-trustee upon the inability or failure of either of the initial co-trustees to continue serving. Ap-pellee contends that the bank was designated successor trustee only if (a) a co-trustee predeceases the testator; (b) a co-trustee never begins to serve; or (c) a co-trustee dies while serving. From an examination of the questioned language, we conclude that the passage is ambiguous. Not only are the interpretations urged by appellant and appellee possible, but .others are also conceivable.

Where the terms of an instrument are clear and unambiguous, there is no need for the court to engage in a construction of such instrument. Rogers v. Atlantic National Bank of Jacksonville, 371 So.2d 174 (Fla. 1st DCA 1979). However, where there is ambiguity or uncertainty arising from the language used which obscures the intent of the testator, construction of the instrument is necessary. 35 Fla.Jur. Wills § 273.

Initially, in the construction of wills and trusts, the testator’s intent should prevail. Rogers at 176. See West Coast Hosp. Ass’n v. Florida National Bank, 100 So.2d 807 (Fla.1958). However, it is the intention which the testator expresses in the instrument that governs, not that which he might have had in mind when it was executed. Iles v. Iles, 158 Fla. 493, 29 So.2d 21 (1947). In construing a will, words should be given their ordinary and usual meaning. In Re Estate of Lesher, 365 So.2d 815 (Fla. 1st DCA 1979).

To construe the phrase “fails to serve” as urged by appellees in this instance to apply only when one of the co-trustees initially fails to serve, appears to run afoul of the elementary rule that the language employed controls rather than the language intended to be used. Boyle v. Howe, 126 Fla. 662, 171 So. 667 (1937). While it is obvious that the paragraph is inartfully drawn, it is more logical to conclude that the testator intended the bank to replace any co-trustee who did not serve or having served, could not continue to serve, as opposed to having to petition the court to select a successor not mentioned in the will, even a stranger to the testator. Nothing was offered in the record to suggest that the testator would have preferred Mr. Tur-ney over the bank. Appellees advance no argument or theory to explain why the testator would provide for a designated trustee to be appointed where the co-trustees predecease or refuse to initially serve or, having served, die, but would not provide for such appointment in innumerable other circumstances, one of which occurred here. Such an illogical construction is avoided by giving a broad reading to “fails to serve” as opposed to the narrow one embraced by the trial court. This principle is analogous to the situation when the terms of a will permit two constructions, one resulting in intestacy and the other, a valid testamentary disposition. The latter construction is clearly preferred. In Re Estate of Gold, 189 So.2d 905 (Fla. 3d DCA 1966).

We hold that the naming of a successor trustee indicates a preference on the part of the testator and where ambiguity exists regarding when such preference should be invoked, it should be resolved in favor of effectuating the testator’s preference absent convincing proof of a contrary intent or purpose of the testator. Under the doctrine of automatic succession, appellant succeeds to its position as co-trustee. See Douglas Properties v. Stix, 118 Fla. 354, 159 So. 1 (1935).

REVERSED.

COBB and SHARP, JJ., concur.

      . No testimony or other proof, other than the will and codicil, were offered to evidence the testator’s intent.


text:
    Joseph Lee EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 81-36.
    District Court of Appeal of Florida, Fifth District.
    Feb. 4, 1981.

      Joseph Lee Evans, pro se.
    No appearance for appellee.
   COBB, Judge.

Evans was convicted of first degree murder. On direct appeal, he contested the sufficiency of the evidence. This court affirmed. Evans v. State, 382 So.2d 908 (Fla. 5th DCA 1980).

Evans then came before this court on appeal of the denial of a motion for post-conviction relief. Since his motion did not procedurally comply with the provisions of Florida Rule of Criminal Procedure 3.850, this court affirmed without prejudice to the defendant to raise the same issues in a proper motion. Evans v. State, 388 So.2d 1366 (Fla. 5th DCA 1980).

Evans is now before this court on appeal of the denial of his subsequent motion for post-conviction relief allowed for by our prior decision. The issues raised by Evans are either ones that should have been raised in his direct appeal or bare allegations without sufficient factual basis. Since the motion was facially insufficient, the trial court was correct in denying it. See Rice v. State, No. 80-776 (Fla. 5th DCA Dec. 17, 1980) [1980 FLW 51].

AFFIRMED.

DAUKSCH, C. J., and COWART, J., concur.


author: BERANEK, Judge.

text:
    In re The ESTATE OF Harry S. HOWARD, Deceased.
    No. 78-2252.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 1981.
    James McCartney Wearn, West Palm Beach, for appellant, Catherine Howard Seidenberg.
    Malcolm Anderson, North Palm Beach, for appellee, Minerva Bitting Howard.
    James G. Pressly, Jr., Gunster, Yoakley, Criser & Stewart, P.A., Palm Beach, for appellee, First Marine National Bank of Lake Worth.
   BERANEK, Judge.

Appellant, income beneficiary of certain shares of stock under a will, seeks reversal of an order of the Circuit Court, Probate Division, awarding certain additional shares of stock resulting from a stock split to the residuary legatee. We conclude that the trial court erred in construing the will and reverse.

Harry S. Howard died on March 17, 1976, leaving a will dated January 19, 1970. Article II of the will established a testamentary trust containing 1,000 shares of stock in American Home Products Corporation, with income to testator’s sister for her life, and thereafter the principal of the trust was to be distributed to the testator’s wife, Minerva Bitting Howard. The specific language of the will in question is as follows:

In the event that my sister, MRS. CATHARINE (sic) HOWARD SEIDEN-BERG, is living at the date of my death, I give and bequeath One Thousand (1,000) shares of the Common Stock of American Home Products Corporation, owned by me at the time of my death, to my Trustee, for the following uses and purposes:
To hold, invest and reinvest the same, to collect and receive the income therefrom, no less often than semi-annually, to my said sister, MRS. CATHARINE (sic) HOWARD SEIDENBERG, during her life. Upon the death of my said sister, my trustee shall transfer and pay over the principal of such trust to my wife, MINERVA BITTING HOWARD, or if she be not then living, to my son, HARRY S. HOWARD, JR., or if he be not then living, to the issue of my said son then living per stirpes.

When the testator executed his will on January 19, 1970, he owned 7,540 shares of stock in American Home Products Corporation. In April, 1973, the stock split three for one, increasing his holdings to 22,620 shares. No change in the will occurred after the stock split. The personal representative petitioned the Probate Court to construe Article II and instruct as to whether the testator’s sister was to receive income from 1,000 or 3,000 shares.

A hearing occurred on the petition for will construction at which no testimony was taken. The court construed the will based upon the document itself and upon the petition and answer thereto, which admitted the stock split, and the other relevant facts indicated above. The trial court’s order found in relevant part:

The issue involved is the interpretation of ARTICLE TWO of the decedent’s will providing a bequest to a trustee of “1,000 shares of Common Stock of American Home Products Corporation, owned by me at the time of my death, ...” The decedent’s will is dated January 18, (sic) 1970, the stated stock was split three for one by the said corporation on May 11, 1973, and the decedent died on March 17, 1976. The issue to resolve is whether the bequest is a general or specific devise and whether the number of shares to be held in trust is 1,000 or 3,000.
732.605 Florida Statutes provides in subsection (l)(b) that a specific devise of securities entitles the devisee to “Any additional or other securities of the same entity owned by the testator because of action initiated by the entity ... ”, thereby giving the legatee the same fractional share of the corporation as designated at the time of making the will. The court finds, however, that under the peculiar wording of ARTICLE TWO of the will the testator expressed a contrary intent by describing a general gift of corporate shares limiting the fractional share of the specified corporation as represented by 1,000 shares at the time of the testator’s death. See: 6 So.2d 274, 67 So.2d 665; and 156 So.2d 18.

In concluding that the trust provisions constituted a “general gift” rather than a specific bequest, the trial court followed an approach often employed by courts in stock split situations. Although there is confusion in the precedents, the established rule seems to be that a general bequest of stock does not carry with it the effects of a stock split occurring between the execution of the will and the testator’s death. On the other hand, a specific bequest of stock does carry with it the effects of a stock split occurring prior to testator’s death. In Re Vail’s Estate, supra. It is important to note, however, that these are rules of construction only, and are to be relied upon only, “when the will fails to give any sufficient indication of [testator’s] actual intent.” In Re Parker’s Estate, 110 So.2d 498, 502 (Fla. 1st DCA 1959).

The trial court relied upon the Vail, Garrison and McDougald cases, all of which enunciate the general rule that a specific bequest carries the stock split while a general bequest does not. We find this narrow application of the test overlooked the most important and crucial aspect of any will construction, which is the testator’s intent as ascertained from consideration of the entire will rather than from an isolated provision of it. Meszaros v. Holsberry, 84 So.2d 565 (Fla.1956); Morgenthaler v. First Atlantic National Bank of Daytona Beach, 80 So.2d 446 (Fla.1955). In determining the testator’s intent, numerous factors should be considered, including his situation at the time he made his will, his ties to the beneficiaries, his motives, and the influences present. Here, the absence of any testimony prevented the trial court from considering most of these factors, and the court had to discern the apparent testamentary scheme for disposition of the property from the face of the document alone. • The will shows testator attempted to provide income for life to his sister, based on the value of an asset which he specifically described as 1,000 shares of stock in a particular corporation. When he made his will, he owned a little over 7,000 shares and intended that the income from 1,000 of these shares go to his sister for life. When he died, he owned over 22,000 shares. We believe he intended that the value of the asset upon which the income was to based was to be at least equal to the value of the 1,000 shares before the split. We thus conclude, in accordance with In Re Parker’s Estate, supra, that the apparent testamentary scheme of the will was entirely consistent with income from 1,000 shares of stock of the corporation which testator then owned.

Since the stock split resulted solely in a change in form and not substance, it should not defeat the apparent testamentary scheme. See In Re Vail’s Estate, supra; In Re Parker’s Estate, supra. As the Second District stated in In Re Will of Liljegren, 298 So.2d 553, 558 (Fla. 2d DCA 1974);

A true “stock split” results in no gains for the stockholder, nor any loss, but simply a change in the form of evidence of his corporate ownership. Page on Wills, 1972-1973 Supplement, Section 39.8, contains the following relevant statement:
“Where a true stock split is involved the difficulties of apportionment between life tenant and remaindermen do not arise, and it is immaterial whether the bequest of stock was characterized as specific or general, as the legatee is entitled to the increased number of shares resulting from the split because the split does not represent a change in the proportionate ownership of the stock, but only a change in form.”
In support of this statement the case of In re Helfman’s Estate, 193 Cal.App.2d 652, 14 Cal.Rptr. 482, is cited. Language quite similar to this is contained in the decisions of the Supreme Court of Florida in the case of In re Vail’s Estate, 67 So.2d 665, and of the District Court of Appeals, 2nd District in the case of Pentland v. Pentland, 113 So.2d 872.

Regarding specific versus general, we adopt the Second District’s view in Parker, supra, 504:

Under authorities of ancient origin a literal interpretation of the bequests here considered would indicate that it is general in character. Under all the facts reflected by this record and considering the apparent scheme of testamentary disposition adopted by the testator with respect to his testamentary estate, there is respectable authority for the view that it was the intent that the bequest be specific. For the purpose of our decision, however, it is immaterial in which category the bequest may fall. We are convinced that the stock split which occurred as a result of corporate reorganization after execution of testator’s will, but before his death, effected a change only in the form of the shares of stock, and not in their substance. (Emphasis supplied.)

Similarly, we conclude that the technicalities of specific versus general are immaterial. We hold the trial court erred in taking the narrow view and in confining consideration solely to the question of whether the bequest was specific or general in the classic and technical sense. The order construing the will is reversed and the matter is remanded with directions for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE and HURLEY, JJ., concur.

      . In Re McDougald’s Estate, 149 Fla. 468, 6 So.2d 274 (1942); In Re Vail’s Estate, 67 So.2d 665 (Fla. 1953); and In Re Garrison’s Estate, 156 So.2d 18 (Fla. 1st DCA 1963).


author: PER CURIAM.

text:
    In re Roy Tony JULLIANO, a/k/a R. T. Julliano, a/k/a Rony M. Julliano.
    No. 79-1740.
    District Court of Appeal of Florida, Fourth District.
    Feb. 4, 1981.
    Jeffrey H. Rosenthal of Resnick & Rosen-thal, Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Chavez-Rey v. Chavez-Rey, 213 So.2d 596 (Fla. 3d DCA), cert. denied, 219 So.2d 700 (Fla.1968).

MOORE, GLICKSTEIN and HURLEY, JJ., concur.


author: DENNIS, Justice. CALOGERO, Justice, LEMMON, Justice, LEMMON, Justice.

text:
    Daniel ROPER v. Pamela J. DAILEY.
    No. 67019.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    On Rehearing Jan. 26, 1981.
    Donald Ensenat, G. Michael Bourgeois, Camp, Carmouche, Palmer, Barsh & Hunter, New Orleans, for plaintiff-applicant.
    Kenneth Michael Wright, Nathan A. Cor-mie & Associates, Lake Charles, for defendant-respondent.
   DENNIS, Justice.

In this review of an action to annul a judgment we are called upon to decide whether the plaintiff, Dennis Roper, bore his burden of proving lack of service of process by the clear and convincing evidence needed to rebut the presumption of validity attached to a serving officer’s return. We conclude that plaintiff did not carry his burden of proof and affirm the court of appeal, 379 So.2d 67, and trial court decisions rejecting his action of nullity.

The present case arises from a judgment obtained in a previous suit. Pamela J. Dai-ley instituted a tort suit against Dennis Roper in the Fourteenth Judicial District Court, Parish of Calcasieu. In this action she sought to recover damages for injuries allegedly sustained as a result of a battery committed on her by Roper. A copy of Dailey’s petition and a citation were forwarded to East Baton Rouge Parish, Roper’s domicile, for service by the sheriff. The return of the citation, dated June 15, 1977, indicates that personal service was made on Roper at his place of employment in Baton Rouge.

Thereafter, Roper having filed no answer in the record, a default judgment was confirmed against him on July 31,1978. Shortly after receiving notice of the judgment Mr. Roper filed a motion for a new trial, alleging that he never was served with notice of the suit filed against him by Pamela Dailey. The trial judge denied the motion on the ground that the proper procedural vehicle for a post-judgment attack based on lack of service is an action to nullify the judgment. See La.R.S. 13:3471(5).

This action of nullity followed on August 16,1978, in which Roper alleged that he was not properly served with process as required by law, and that the default judgment was based on insufficient evidence. The trial court found, and the court of appeal agreed, that Roper did not prove his case on either basis. We granted a writ of certiorari, 382 So.2d 166, to decide whether the court of appeal erred in finding that (1) the presumption of validity attached to the serving officer’s return was not rebutted by clear and convincing evidence proving lack of service of process, and (2) the testimony of the serving officer, when read as a whole, supported the trial court’s finding that personal service on Roper was accomplished pursuant to statutory requirements.

As recognized by the court of appeal below, the trial court correctly summarized the law applicable to the burden of proving lack of service of process as follows:

“A return of citation is prima facie evidence of service. La.C.C.P. Arts. 324, 1292; La.R.S. 13:3471(5); Hood Motor Company, Inc. vs. Lawrence, 334 So.2d 460 (La.App. 1st Cir. 1976) writ denied, 338 So.2d 288, Martinez vs. Silverman, 288 So.2d 88 (La.App. 4th Cir. 1974); Smith vs. Crescent Chevrolet Co., 1 So.2d 421 (La.App. 1st Cir. 1941). The return of the officer on the citation is given great weight and the burden rests on the party attacking it to establish otherwise by clear and convincing evidence. Canterberry vs. Slade Brothers, 232 La. 1081, 96 So.2d 4 (1957); League Central Credit Union vs. Gagliano, 336 So.2d 931 (La.App. 4th Cir. 1976); Spinks vs. Caddo-Bossier Services, Inc., 270 So.2d 604 (La.App. 2d Cir. 1972). A return of citation cannot be impeached by the uncorroborated testimony of a single witness, Can-terberry vs. Slade Brothers, supra, League Central Credit Union vs. Gagliano, supra, Guedry Finance Company vs. Breland, 192 So.2d 884 (La.App. 4th Cir. 1966), and it cannot be impeached by the uncorroborated testimony of the party upon whom service is stated to have been made by the officer. Canterberry vs. Slade Brothers, supra; Hood Motor Company, Inc. vs. Lawrence, supra; Guedry Finance Company vs. Breland, supra; Smith vs. Crescent Chevrolet Co., supra; Martinez vs. Silverman, supra; Sims vs. First National Bank of Ruston, 177 La. 386, 148 So. 505 (1933); Logwood vs. Logwood, 185 La. 1, 168 So. 310 (1936).”

Furthermore, the rule has arisen in the jurisprudence that testimony of the serving officer is inadmissible if it would vary, contradict, and break down his official return of a citation, although the officer may testify to incidental and collateral facts in support of his return and in order to show the validity of his acts. Adler v. Board of Levee Commissioners, 168 La. 877, 123 So. 605 (1929); Baham v. Stewart Bros. & Co., 109 La. 999, 34 So. 54 (1903); Smith v. Crescent Chevrolet Co., 1 So.2d 421 (1st Cir. 1941).

The major dispute in this case concerns testimony given by the serving officer which could arguably be construed to vary, contradict, or break down his official return of citation. Deputy Sheriff Sidney J. Williams, the serving officer, testified at trial that it was an occasional practice in East Baton Rouge Parish to accomplish service of citation at a place of business by contacting the person to be served by telephone and obtaining his permission to leave the citation with a secretary or receptionist. He further testified (as could be expected because of the great number of citations served by any officer so employed) that he could not remember personally serving Roper, and that he could not recall ever having met him until sometime after the confirmation of the default judgment.

Roper contends that the officer’s testimony reveals that service could have been made upon a secretary or receptionist, and if so, this would not constitute personal service pursuant to La.C.C.P. art. 1232, which provides: “Personal service is made when a proper officer tenders the citation or other process to the person to be served.”

We agree that such a method of service would not constitute a tender “to the person to be served” as required by the article. In addition, we do not view the rule which disallows negative testimony by the serving officer to be so inflexible as to preclude information that may establish a pattern or practice of service at variance with statutory requirements. The officer should be able to explain to the court the underlying mode of operation which results in the return of a citation. It is then for the court to decide whether that mode of operation complies with the law of service of process.

Giving weight to the officer’s testimony which indicates that service could have been accomplished by less than full compliance with the requirements of personal service, we still do not find that Roper has brought forth clear and convincing evidence to impeach the officer’s return of the citation. The officer did not testify that there was no personal service on Mr. Roper; rather, he disclosed that a return of the citation indicates he handed Roper the citation or he left the citation with a secretary or receptionist after obtaining Roper’s permission. The only other witness was Roper, who steadfastly denied ever being served himself. We cannot say that this denial was sufficiently corroborated by the officer’s understandable difficulty in recalling the facts related to this particular return. Unfortunately for his case, Roper produced no other witnesses to add weight to the possibility that there was improper service. We cannot find from the evidence before us that the trial judge or court of appeal erred in finding the plaintiff did not meet his burden of proof.

For the foregoing reasons, the judgments of the trial court and the court of appeal are affirmed.

AFFIRMED.

CALOGERO and LEMMON, JJ., dissent and assign reasons.

CALOGERO, Justice,

dissenting.

I am of the opinion that plaintiff in this case made a sufficient showing that he was not personally served with the petition in the earlier suit. He is therefore entitled to a judgment of nullity.

LEMMON, Justice,

dissenting.

A party can be served at his place of business only by personal service, and service on the party’s secretary is not personal service.

The officer admitted that when he had to serve a party at the party’s place of business, he frequently called the party and obtained permission to leave the citation and petition with the secretary.

The officer’s admission itself defeated the presumption of validity of the officer’s return. And defendant’s testimony that he was never served established that fact by a preponderance of the evidence.

The judgment denying the petition for nullity should be reversed.

ON REHEARING

LEMMON, Justice.

Upon reconsideration we conclude that Dennis Roper proved, by a preponderance of the evidence, that he was not served with citation, and we accordingly hold that he is entitled to a judgment declaring the nullity of the default judgment in the original action.

The return of citation, upon which the default judgment was based, indicated personal service on Roper at his place of business. A party can be validly served at his place of business only by citation served on the party personally, and Roper testified at the trial of the nullity that he was never served and never received the citation.

On the other hand, the serving officer testified that while he had no independent recollection of the facts surrounding the service and return of citation in this case, he frequently served a party at his place of business by calling ahead and obtaining permission to leave the citation with a secretary or receptionist.

The plaintiff in a nullity action has the burden of proving his case by a preponderance of the evidence. There is a preponderance when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (La.1971).

While the recitation on the return of citation is presumed to be correct, the presumption is rebuttable. Roper’s testimony, standing alone, may not be sufficient to tip the scales in his favor. However, the serving officer’s testimony indicates that if he followed his frequent method of making “personal” service at a party’s place of business, he very well may not have served Roper personally. Furthermore, as soon as Roper was notified of the default judgment, he employed counsel and took immediate action, and there are no other circumstances which raise inferences contrary to Roper’s testimony.

Taking the evidence in the nullity action as a whole, we conclude that, more probably than not, the serving officer did not serve the citation on Roper personally.

Accordingly, the judgments of the lower courts in the nullity action are reversed, and judgment is now entered declaring the nullity of the judgment rendered by default on July 31, 1978. Court costs in all courts are assessed to Pamela Dailey.

WATSON, J., concurs, being of the opinion that the trial court should have granted the motion for new trial.

DIXON, C. J., dissents.

DENNIS, J., dissents with reasons.

      . For example, in Canterberry v. Slade Bros., 232 La. 1081, 96 So.2d 4 (La.1957) the plaintiff in that nullity action involving title to land waited 21 years to bring the action. He did not occupy or pay taxes on the land in the meantime, and oil had been discovered. The court held that plaintiff’s testimony did not overcome the recitation on the return of service.


author:
DENNIS, Justice.
     WATSON, Judge, DIXON, Chief Justice. MARCUS, Justice

text:
    LOUISIANA STATE BAR ASSOCIATION v. Ronald L. CAUSEY.
    No. 60354.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    On Rehearing Jan. 26, 1981.

      Thomas 0. Collins, Jr., Executive Counsel, Harold J. Lamy, New Orleans, Roland J. Achee, Shreveport, Wood Brown, III, New Orleans, Sam J. D’Amico, Baton Rouge, Leonard Führer, Alexandria, Edgar H. Lancaster, Jr., Tallulah, Alfred S. Landry, New Iberia, A. Russell Roberts, Metair-ie, John B. Scofield, Lake Charles, for applicant, Louisiana State Bar Association.
    Walter P. Macmurdo, Baton Rouge, for respondent.
   DISCIPLINARY PROCEEDING

DENNIS, Justice.

The Louisiana State Bar Association, through its Committee on Professional Responsibility, brought this disciplinary proceeding against one of its members, Ronald L. Causey. We conclude that Mr. Causey violated the Code of Professional Responsibility by failing to represent his client competently because of neglect of a legal matter entrusted to him.

This action commenced by way of a letter of complaint dated February 2, 1976 from Carlo Maenza to the bar association. In this letter, Mr. Maenza, who was and remains in the custody of the Department of Corrections, alleged that despite paying respondent Causey two thousand dollars ($2,000) on November 20, 1975 to secure his release, he had not received any services. Based upon this complaint the Committee on Professional Responsibility conducted a preliminary investigation, concluding that a formal investigatory hearing was warranted.

Thereafter, on July 25, 1977, petitioner instituted in this Court a suit seeking to suspend or otherwise discipline the respondent for alleged professional misconduct. A Commissioner was appointed pursuant to the provisions of Article XV, Section 6, of the Articles of Incorporation of the Louisiana State Bar Association (1971), approved by us as a rule of this Court. Hearings were held on August 13, 1978; September 13, 1978; September 21, 1978; and October 4, 1978. Based upon the evidence adduced at these hearings the Commissioner concluded that there was a violation of Disciplinary Rules 2-103, 2-106, 6-101 and 7-101. The Committee concurred in the findings of fact and conclusions of law as stated by the Commissioner. The respondent failed to formally except to the Commissioner’s report; however, he did strenuously contest both the findings of fact and conclusions of law by brief and oral argument.

Preliminarily, we note that although failure of the respondent attorney to except to the Commissioner’s report means its findings are confirmed as against him, we have held that the ultimate responsibility rests with this Court to determine whether, as a matter of law, such facts constitute the unethical conduct alleged, as well as for it to assess what penalty it deems appropriate if it finds disciplinary proceedings are warranted. Louisiana State Bar Association v. Edwins, 329 So.2d 437 (La.1976). Furthermore, the burden rests with the association to establish proof of misconduct by clear and convincing evidence. Louisiana State Bar Association v. Brown, 291 So.2d 385 (La.1974); Louisiana State Bar Association v. Edwins, supra.

The circumstances leading to this disciplinary action began in May or June of 1975 when Ronald Causey was initially contacted concerning his possible representation of Carlo Maenza, who had been placed by the Department of Corrections in the Forensic Unit of the East Louisiana State Hospital at Jackson, Louisiana. At that time Mr. Causey informed Maenza that it would cost twenty-five hundred dollars ($2,000 initial fee and $500 upon release) to help secure his release. On November 20,1975 Mr. Maenza paid Ronald Causey two thousand dollars and officially retained him as his attorney.

The major question raised by this disciplinary action is what services were actually rendered by Ronald Causey after accepting Carlo Maenza as a client on November 20, 1975. The significant events which occurred were as follows: on February 2, 1976 Maenza filed his complaint against respondent with the bar association. On April 19,1976 Causey enrolled as counsel of record for Maenza in the Twenty-Fourth Judicial District Court, replacing John F. Rau, the trial attorney. On April 21, 1976 Causey filed a petition for a writ of habeas corpus in the Twenty-Fourth Judicial District Court; this petition was summarily denied. On August 3, 1976, Causey filed a petition seeking executive clemency and pardon before the Board of Pardons of the State of Louisiana. This petition was denied July 14, 1977, and an appeal of the original denial of pardon, filed September 8, 1978 was also denied.

After being paid a fee of $2,000 the respondent failed to take action of any consequence toward Maenza’s pardon for approximately an eight and one-half month period. He claimed to have sent his law clerk to Jefferson Parish to review the trial court record in Maenza’s case, but the law clerk testified that he could not recall whether he performed this service. The petition for habeas corpus filed by the respondent does not appear to have been a serious attempt to obtain Maenza’s release either by the writ process or by facilitating a later petition for pardon and executive clemency. The grounds asserted in the petition were obviously without merit — a claim of denial of due process based on the state’s failure to make a favorable lie detector test available to the defendant for trial purposes; the trial judge summarily denied the writ because the evidence would not have been admissible at trial. Respondent testified that he conducted telephone conversations with Maenza and certain members of his family, visited Maenza at the hospital in Jackson, and conducted research. His former law clerk testified regarding one visit with Maenza after his transfer to Angola in June, 1976. However, these matters would not have consumed a period of eight and one-half months, and the documents introduced by respondent from his file failed to convince the Commissioner or this Court that there was very much activity during this period.

We agree with the Commissioner that Causey’s inactivity constitutes a violation of Disciplinary Rule 6-101; specifically, we hold that respondent has violated DR 6-101(A)(3): he has failed to act competently by neglecting a legal matter entrusted to him.

In Louisiana the attorney-client contract is not an arm’s length transaction, especially as between a compensated attorney and an incarcerated prisoner. The parties do not enter the bargaining process as equals. One comes as a member of a highly privileged profession; the other is stripped of most of society’s freedoms, including the ability freely to communicate and seek information. For this reason, the Disciplinary Rules, which seek to justify the attorney’s privilege of practicing law by imposing responsibility for the welfare of his client, must be scrupulously obeyed in this kind of relationship.

The Ethical Considerations and Disciplinary Rules under Canon Six deal particularly with the lawyer’s duty of competent performance. DR 6-101(A) provides three negative tests for competent performance: a lawyer should not handle a legal matter he is not competent to handle without seeking assistance from competent co-counsel; a lawyer should not handle any legal matter without adequate preparation; and a lawyer should not neglect any legal matter entrusted to him.

Applying this rule to the evidence of record, we conclude that the respondent was guilty of neglecting a legal matter entrusted to him. Although he was paid $2,000 in advance to start working on obtaining a pardon or executive clemency for Maenza, he did not file a petition for this relief until eight and one-half months later. This action came only after Maenza had filed a complaint against respondent with the bar association. Even then, it followed the bar association complaint by some six months.

The fact that respondent filed a petition for habeas corpus two months after the complaint was lodged with the bar association does not dispel his neglect of Maenza’s case for pardon or clemency. Respondent’s argument that it was filed in order to bolster a petition for a pardon to be filed later is unconvincing. He himself admitted that all of the evidence he hoped to educe at the habeas hearing could have been introduced independently before the pardon board. We find flimsy, likewise, respondent’s assertion that he failed to file the pardon petition for eight and one-half months because he was awaiting time for Maenza’s case to ripen. If Maenza’s case was not ripe on November 20,1975 when respondent accepted a fee of $2,000 and promised to start working on obtaining his release, either the fee should have not been accepted or the client should have been told the true circumstances of his case.

The Commissioner found that the same inactivity which we hold constitutes a violation of DR 6-101(A)(3) also amounts to a violation of DR 7-101. We do not find that the bar association met its burden of proof to show intentional misconduct on the respondent’s part which is required for a violation of this rule. Respondent was neglectful and inactive, but the evidence is not clear and convincing that he intentionally failed to seek lawful objectives of his client or to carry out his contract of employment.

Nor can we agree with the Commissioner’s conclusion that there was also a violation of Disciplinary Rule 2-103(A), (C), or (E). Although Causey was initially contacted about Maenza’s situation by a doctor at East Louisiana State Hospital, there is no clear and convincing evidence to indicate that Causey recommended himself to Maen-za, that he requested the doctor to recommend him, or that he knew or should have known that his services were possibly the result of conduct prohibited by the Disciplinary Rule in question.

The Commissioner further concluded that there was a violation of Disciplinary Rule 2-106, which prohibits a lawyer from charging an excessive fee for legal services. In light of the fact that respondent has not completed his duties of representing Maen-za and testified that he would continue his efforts in the prisoner’s behalf, we think it is premature to conclude on this record that the fee is excessive.

The purpose of lawyer disciplinary proceedings is not so much to punish the attorney as it is to maintain appropriate standards of professional conduct in order to protect the public and the administration of justice. Louisiana State Bar Association v. Quaid, 368 So.2d 1043 (La.1979); Louisiana State Bar Association v. Bensabat, 378 So.2d 380 (La.1979); ABA Joint Committee on Professional Discipline, Standards for Lawyer Disciplinary and Disability Proceedings, § 1.1, p. 1 (Tentative Draft June, 1978). The discipline to be imposed in a particular case, of course, will depend upon the seriousness and circumstances of the offense, fashioned in light of the purpose of lawyer discipline, taking into account aggravating and mitigating circumstances. Louisiana State Bar Association v. Bensabat, supra; ABA Joint Committee on Professional Discipline, Standards for Lawyer Disciplinary and Disability Proceedings, § 7.1, p. 44 (Tentative Draft June, 1978).

In view of these principles and our finding that respondent has violated Disciplinary Rule 6-101(A)(3), we adopt the Committee on Professional Responsibility’s recommendation that respondent should be suspended from the practice of law. We note that the record does not reflect any moral turpitude or corrupt motives on the part of respondent Ronald Causey. This is rather a case of inattention and procrastination. Other courts have made a distinction for purposes of disciplinary action in cases of neglect where no outright dishonesty is proved. See State v. Graves, 153 So.2d 297 (Fla.1963); In Re Chapman, 69 Ill.2d 494, 14 Ill.Dec. 479, 372 N.E.2d 675 (1978); In Re Levin, 77 Ill.2d 205, 32 Ill.Dec. 870, 395 N.E.2d 1374 (1979); In Re Holm, 285 Or. 189, 590 P.2d 233 (1979). Although this Court is willing to recognize this distinction in this case, this does not mean that we condone respondent’s behavior, or that we will not impose harsher sanctions in future cases if protection of the public so requires. Procrastination and inattention can have effects upon the client that are just as disastrous as if dishonesty were involved. In Re Holm, supra (Holman, J., concurring).

Decree

For the reasons discussed above, it is ordered, adjudged, and decreed that respondent Ronald L. Causey be suspended from the practice of law for ninety (90) days; provided, however, that an exception to this suspension shall exist with respect to the services which respondent is obliged to perform in behalf of his client, Carlo Maenza.

WATSON, J., dissents and assigns reasons.

WATSON, Judge,

dissenting.

While promptness is highly desirable in service by a lawyer to his client, the court goes too far in attempting to police the bar by imposing suspension on an attorney for being dilatory. If the conclusion that Mr. Causey neglected the legal matter is correct, then a public reprimand would suffice.

Therefore, I respectfully dissent.

ON REHEARING

DIXON, Chief Justice.

In his application for rehearing respondent complains both of the factual finding of misconduct and the penalty, arguing that the publication of the notice of the pending disciplinary proceedings published for three years in the bar journal was punishment enough.

A review of the record discloses no factual error in the conclusion reached in our original opinion. Nor was the punishment imposed too severe.

Some delay in disciplinary proceedings is inherent in the process. Some delay in these proceedings might well be attributable to the commissioner, and we might even assume that is so. But it would be an assumption, because respondent never complained of delay before the case reached us. Consequently, there was no opportunity to make a record on the cause of much of the delay. The record does reflect that at least a large part of the delay was caused by respondent, when the hearings were recessed from time to time to allow him to gather and present documentary evidence to support his contentions.

Nor is the punishment imposed too severe. A mere reprimand in this case would not protect the public from a repetition of the offense. To take money for legal services promised, and then to fail to deliver for many months, is a practice destructive of the respect and confidence due members of the bar, and a practice from which the public must be protected.

In our original opinion we did not cast the respondent with costs. Relator now properly seeks an amendment of the decree, which we grant.

For the reasons expressed above, our original opinion is reinstated; the decree is amended to cast the respondent with the costs of these proceedings, and is otherwise reinstated as the order of the court.

LEMMON, J., dissents.

MARCUS, J., dissents and assigns reasons.

WATSON, J., dissents for reasons originally assigned.

MARCUS, Justice

(dissenting).

I dissent, being of the opinion that a reprimand would be adequate punishment under the circumstances of this case.

       The Honorable Frederick S. Ellis participated in this decision as an Associate Justice pro tem-pore.

      . Dispute arose at the Commissioner’s hearings over respondent’s repeated failure to produce the original of several documents offered by him into evidence to show activity on behalf of the client Maenza. The Commissioner decided to give these documents no weight because the originals were never produced. We have reviewed these documents and, giving them full weight, we find that they do not rebut the charges of inactivity and neglect levelled against the respondent.

      . DR 6-101 Failing to Act Competently
      (A) A lawyer shall not:
      (1) Handle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it.
      (2) Handle a legal matter without preparation adequate in the circumstances.
      (3) Neglect a legal matter entrusted to him.

      .DR 7-101 Representing a Client Zealously.
      (A) A lawyer shall not intentionally:
      (1) Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules, except as provided by DR 7-101(B). A lawyer does not violate this Disciplinary Rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of his client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.
      (2) Fail to carry out a contract of employment entered into with a client for professional services, but he may withdraw as permitted under DR 2-110, DR 5-102, and DR 5-105.
      (3) Prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102(B).
      (B) In his representation of a client, a lawyer may:
      (1) Where permissible, exercise his professional judgment to waive or fail to assert a right or position of his client.
      (2) Refuse to aid or participate in conduct that he believes to be unlawful, even though there is some support for an argument that the conduct is legal.

      . The rule provides in pertinent part:
      DR 2-103 Recommendation of Professional Employment.
      (A)A lawyer shall not recommend employment, as a private practitioner, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer.
      * * * * * *
      (C) A lawyer shall not request a person or organization to recommend or promote the use of his services or those of his partner or associate, or any other lawyer affiliated with him or his firm, as a private practitioner, except that ....
      * * * * sH *
      (E) A lawyer shall not accept employment when he knows or it is obvious that the person who seeks his services does so as a result of conduct prohibited under this Disciplinary Rule.

      . DR 2-106 Fees for Legal Services.
      (A) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.
      (B) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following:
      (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
      (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
      (3) The fee customarily charged in the locality for similar legal services.
      (4) The amount involved and the results obtained.
      (5) The time limitations imposed by the client or by the circumstances.
      (6) The nature and length of the professional relationship with the client.
      (7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
      (8) Whether the fee is fixed or contingent.
      (C) A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case.


author:
DIXON, Chief Justice.
     CALOGERO, Justice, WATSON, Justice,

text:
    UNION SERVICE & MAINTENANCE CO., INC. v. E. Reid POWELL.
    No. 66470.
    Supreme Court of Louisiana.
    Dec. 16, 1980.

      Gary M. Zwain, Johnston & Duplass, New Orleans, for plaintiff-applicant.
    Ralpy D. Dwyer, Jr., Many, LoCoco & Dwyer, John C. Saunders, Jr., Guste, Barnett & Shushan, Peter Frank Liberto, New Orleans, for defendant-respondent.
   DIXON, Chief Justice.

Plaintiff corporation filed suit against defendant, who was formerly an officer and director of the corporation, alleging that defendant had failed to satisfy an indebtedness to the corporation in connection with various transactions. Defendant then filed an answer and a third party demand against Raymond S. Walters, at that time the sole or principal shareholder of plaintiff corporation, alleging breach of contract. Plaintiff later amended its petition, charging defendant with fraud. In a subsequent answer and third party demand, defendant denied any wrongdoing and asserted an action sounding in defamation against Walters, the third party defendant. Defendant sued for $100,000, claiming that Walters was responsible for the defamatory allegations in plaintiff’s amended petition.

Third party defendant Walters excepted to the demand, contending that it failed to state a cause of action against him personally, and later arguing that a party cannot bring an action for defamation on the basis of allegedly libelous pleadings in a suit which is still pending.

The district court overruled the exceptions, and the Fourth Circuit denied writs. This court granted a writ of review in order to resolve an apparent conflict among the circuits on the question of whether a party who is defamed by the pleadings in a lawsuit must await the termination of that suit before suing for defamation.

We must initially note, however, that the case is presented in an awkward procedural posture. The parties to this litigation have consistently assumed that defendant’s demand is a reconventional one, asserted against the plaintiff. C.C.P. 1061. This is not the case. Defendant has failed to reconvene against the plaintiff corporation, alleging instead that Walters, the third party defendant, is solely responsible for the corporation’s actions. The defamation action is brought, not through a recon-ventional demand, but by the procedural vehicle of a third party demand. Such a demand cannot be asserted in this context.

C.C.P. 1111 states in part:

“The defendant in a principal action by petition may bring in any person, including a codefendant, who is his warrantor, or who is or may be liable to him for all or part of the principal demand.”

The jurisprudence interpreting this provision has consistently observed that the third party demand is a device principally used for making claims of contribution or indemnity in the event that defendant is cast in judgment on the principal demand. Avegno v. Byrd, 377 So.2d 268, 273 (La.1979). Under the circumstances of this case, it is clear that defendant’s third party defamation action does not seek to hold Walters responsible for all or part of the principal demand. The third party demand therefore fails to state a cause of action. Karam v. St. Paul Fire & Marine Insurance Co., 281 So.2d 728 (La.1973) fully discussed the problem and its history; its holding is adverse to relator.

Perhaps in recognition of the defective nature of the pleading, counsel for defendant implies that the third party demand can be treated as a reconventional demand for the purposes of this litigation. This court has long followed the rule that technical rules of pleading should not prevent the just disposition of a case:

“The characterization of a pleading by the litigant is not controlling. Pleadings are taken for what they really are, and not for what their authors designate them. A court should not eject a justicia-ble cause merely because it is dressed in the wrong coat.” Succession of Smith, 247 La. 921, 928, 175 So.2d 269, 271 (1965).

It appears from the record that defendant’s charge of defamation was originally filed as a “reconventional demand.” Nevertheless, the allegations forwarded by defendant make clear defendant’s contention that Walters was “personally responsible” for the allegedly defamatory allegations contained in plaintiff’s amended petition; defendant plainly sought to hold Walters personally liable and not the plaintiff corporation.

We are not unaware that, because C.C.P. 1111 offers only a rather limited cross claim between defendants, otherwise impermissible third party actions have been allowed by characterizing them as interventions. See, e. g., Travelers Insurance Co. v. Sonnier, 344 So.2d 73 (La.App.4th Cir. 1977); Gehr v. Department of Highways, 337 So.2d 691 (La.App.4th Cir. 1976); Gallin v. Travelers Insurance Co., 323 So.2d 908 (La.App.4th Cir. 1975); Bellow v. New York Fire & Marine Underwriters, Inc., 215 So.2d 350 (La.App.3d Cir. 1968); “Work of Appellate Courts: Civil Procedure,” 38 La.L.Rev. 503, 507-509 (1978) and 37 La.L.Rev. 528, 529-530 (1977). These cases represent laudatory efforts in the courts of appeal to do justice and decide the whole case. Here, however, the code is clear, and relator has a right to rely on its provisions. The defendant has not been constricted in pursuing his claims by the rules of procedure; he has instead ignored an available procedural vehicle that would have allowed him to bring his claim before the court, preferring to pursue his claim against Walters personally, and in the same suit.

One procedure available to the defendant was to reconvene against the plaintiff corporation, alleging the action in defamation. If defendant had grounds to assert that Walters’ presence as a defendant in the reconventional demand was necessary for complete relief, Walters could have been made a defendant in reconvention under C.C.P. 1064:

“When the presence of parties other than those to the principal action is required for the granting of complete relief in the determination of a reconventional demand, the court shall order the plaintiff in reconvention to make such parties defendants in reconvention, if jurisdiction of them can be obtained.”

Comment (a) under that article states in part:

“. . . The reconventional demand was broadened so as to permit the defendant to assert whatever action he may have against the plaintiff, even though this reconventional demand may require the presence of third persons indispensable to the action, if jurisdiction over the latter can be obtained.”

C.C.P. 1064 is comparable to F.R.C.P. 13(h), which permits indispensable or necessary parties to be joined in lawsuits. Considering defendant’s allegation that Walters is the sole shareholder of plaintiff corporation, and that he used the corporate identity as a device for defaming defendant, Walters might certainly qualify as a necessary party to the suit under C.C.P. 642. Cf. State of Louisiana, Through Dept. of Highways v. Lamar Advertising Co., 279 So.2d 671 (La. 1973).

Nevertheless, the issue of whether a party can sue for defamation during the pend-ency of a lawsuit because of allegedly defamatory pleadings is not properly before us. Taking the pleadings as they “really are,” we find that defendant attempted to assert a third party action against Walters on grounds not authorized by C.C.P. 1111, and not within the scope of C.C.P. 1061 or 1064.

For the foregoing reasons, this court cannot reach the issue for which the writ was originally granted. Defendant’s demand does not set forth a cause of action cognizable within the procedural rules of third party practice. The exception is valid, and the judgment of the district court is reversed, at relator’s cost.

CALOGERO, J., concurs and assigns reasons.

LANDRY, J. ad hoc, concurs for reasons assigned by CALOGERO, J.

WATSON, J., concurs and assigns reasons.

CALOGERO, Justice,

concurring.

I concur in the result reached by the majority, that the issue of whether the defamation suit may be brought during the pendency of the suit in which the defamatory allegations arose is not properly before the Court, but not for the reasons assigned by the majority. Rather, I believe that Powell’s third party demand against Walters for defamation, because of allegations made by Union in Union’s petition, does not state a cause of action against Walters.

If it did state a cause of action, I do not believe that Powell’s defamation suit against Walters should be barred simply because there is pending the corporation’s suit charging Powell with fraud. A defendant to a lawsuit is not barred from suing a person not party to the litigation for libel or slander simply because in asserting and proving his damages he alleges that the defamatory statements caused a lawsuit to be filed against him.

On the other hand, if we were to assume that Powell’s third party demand against Walters for defamation properly states a cause of action against him, as was concluded by the majority, then I disagree with the majority treatment of the matter. What the majority says is not incorrect, except upon considering a fact that is not mentioned in the opinion.

That relevant fact was this. Powell initially brought an incidental action against Walters that was styled “Third Party Demand” and did comply with the requirements for a third party demand provided in C.Civ.P. art. 1111, because it sought reimbursement of such amount as Powell might owe Union in the original suit (for reasons unrelated to defamation). It was only after this that plaintiff Union amended its petition and charged Powell with making fraudulent transactions. This prompted Powell to amend his third party petition against Walters and add a defamation claim to his demand.

While this later supplemental third party claim for defamation does not, as stated by the majority, simply pray for reimbursement as authorized by C.Civ.P. art. 1111, its cumulation with the other third party claim is nevertheless authorized by C.Civ.P. arts. 1040 and 462. Admittedly, under C.Civ.P. art. 465, if such a cumulation of claims would interfere with the “orderly disposition of the case” or if it “would otherwise be in the interest of justice,” the court may order that they be tried separately. But that is a judgment call that has not here been made. Were I called upon to make such a determination, I would feel that it was in the best interest of all the parties and judicial economy to allow the cumulation because evidence concerning the respective claims is interrelated.

In summary, our desisting from considering the issue which prompted the writ grant is appropriate, but not for the reasons assigned by the majority. Therefore, I concur.

WATSON, Justice,

concurring:

I disagree with the majority’s theory that there was not a valid reconventional demand against Walters. Although Walters was labeled a third party defendant, Powell in effect reconvened against Walters as the alter ego of the plaintiff corporation. This is conceded by the parties. The exception of no cause of action by Walters . excepts to the reconventional demand of . . . Powell ...” (Tr. 21). However, I concur in the majority’s conclusion that Powell failed to state a cause of action for the following reasons:

There is a conflict in the circuits on the question of whether a party allegedly libeled in the pleadings of a lawsuit can sue for that libel prior to termination of the suit. Marionneaux v. King, 331 So.2d 180 (La.App. 1 Cir. 1976); Coleman v. Kroger Co., 371 So.2d 1186 (La.App. 1 Cir. 1979), writ refused 372 So.2d 1041; Lees v. Smith, 363 So.2d 974 (La.App. 3 Cir. 1978); Calvert v. Simon, 311 So.2d 13 (La.App. 2 Cir. 1975); and Viera v. Kwik Home Services, Inc., 266 So.2d 732 (La.App. 4 Cir. 1972), writ refused, judgment not final, 268 So.2d 258.

Because LSA-C.C.P. art. 1061 does not require connexity between the principal and reconventional demands, Viera decided that a libel claim can be brought by reconven-tional demand in the suit containing the alleged libel. Viera is not without precedent. Sabine Tram Co. v. Jurgens, 143 La. 1092, 79 So. 872 (1918) allowed a reconven-tional demand for libel in a suit alleging fraud without discussion of the termination requirement. There the question of fraud was apparently decided by judgments in separate suits before the reconventional demand was considered. See also Pelletier v. Pugh, 16 La.App. 693, 132 So. 769 (1931) and Story v. Martin, 217 So.2d 758 (La.App. 4 Cir. 1969). However, most of the Louisiana authorities state that the suit alleged to contain the libel must be brought to a conclusion before damages can be claimed by a party to the suit. See, for example, Manuel v. Deshotels, 160 La. 652, 107 So.2d 478 (1926); W. B. Thompson & Co. v. Gosserand, 128 La. 1029, 55 So. 663 (1911); Loew’s, Incorporated v. Don George, Inc., 237 La. 132, 110 So.2d 553 (1959); Marionneaux v. King, supra; Coleman v. Kroger Co., supra; Lees v. Smith, supra; Calvert v. Simon, supra. In a per curiam denial of rehearing, the Viera court indicated that its ruling does not discourage valid claims because relevant statements in judicial proceedings “.. . cannot form the basis of a libel action.” 266 So.2d 737.

Every other jurisdiction in the United States recognizes an absolute privilege for relevant defamatory matter published in judicial pleadings when the court has jurisdiction of the suit. The privilege allows prospective litigants access to courts of justice with no fear of a counterclaim for libel. See 38 A.L.R.3d 272, § 3; 50 Am.Jur.2d § 238; Prosser Torts 4th Ed. pp. 777-781; and 53 C.J.S. Libel § 104.

Some Louisiana cases indicate an absolute privilege for pertinent matters published in a judicial proceeding by one of the parties but these are in the minority. Gardemal v. McWilliams, 43 La.Ann. 454, 9 So. 106 (1891) is an example of the genre and shows common law influences. This view was rejected in later cases: Lescale v. Joseph Schwartz Co., 116 La. 293, 40 So. 708 (1906) specifically repudiated the idea that material matters are necessarily privileged. Cotonio v. Guglielmo, 176 La. 421, 146 So. 11 (1933) points out that: “. .. litigants must be careful to see that they have probable .cause.” 146 So. 14.

The Louisiana rule is unique. In Louisiana, alone, relevant written allegations in judicial proceedings can form the basis for a libel action, if false, malicious and made without probable cause. Gosserand v. Gumbel, 154 La. 537, 97 So. 852 (1923); Oakes v. Alexander, 135 So.2d 513 (La.App. 2 Cir. 1961), writ denied; Wimbish v. Hamilton, 47 La.Ann. 246, 16 So. 856 (1895); Sunseri v. Shapiro, 138 So.2d 661 (La.App. 4 Cir. 1962); Waldo v. Morrison, 220 La. 1006, 58 So.2d 210 (1952). Allegations may be material but false and actionable. Lescale, supra; Cotonio, supra.

The distinction drawn in Viera between suits for malicious prosecution and those for libel is unsound. See Giordano v. Tullier, 139 So.2d 15 (La.App. 4 Cir. 1962); the comment by Professor Wex S. Malone at 15 La.Law Rev. 314; Acme Stores, Inc. v. Better Business Bureau, 225 La. 824, 74 So.2d 43 (1954); and 12 Stone — La. Tort Doctrine, p. 238. Both actions are based on fault produced damage under Civil Code art. 2315. There is little to distinguish them.

Opinions prior to Viera had noted the appeal of the arguments favoring simultaneous trial of the merits and contingent libel issues. Robinson Mercantile Co. v. Freeman, 172 So. 797 (La.App. 1 Cir. 1937). However, Judge Boutall’s dissent in Viera states the better view: “... it is an essential ingredient to the cause of action that there be a termination of the case in which the allegedly libelous statements appear. 266 So.2d 736.

Well summarized in Calvert v. Simon, supra, is the reason for the rule:

“Louisiana law permits recovery by a party damaged by libelous statements made without probable cause and with malice by another party in a judicial proceeding, but consistent with orderly procedure and the concept of unhampered expression in the course of litigation, requires the party claiming such damage to await the determination of the original proceeding. Although the outcome of the original proceeding may not necessarily determine the issue of whether a party thereto can subsequently recover for libelous statement made therein, in most cases the outcome of the original suit will have a strong bearing on determination of that issue.” 311 So.2d 17.

Allegations of fraud may be proven at trial, incidentally deciding the question of defamation. See, for example, Russo v. Kelly, 228 So.2d 736 (La.App. 4 Cir. 1969), writ denied, 255 La. 472, 231 So.2d 392. Compare Dunn v. Southern Ins. Co., 116 La. 431, 40 So. 786 (1906). Premature trial of such thorny issues should be avoided. It may develop that trial is never necessary. The truth of defamatory statements is a statutory defense. LSA-R.S. 13:3602.

The Louisiana Constitution of 1974 guarantees redress for defamation injury in Art. 1, § 22:

“All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.”

Louisiana has an exceptional approach to defamation in judicial pleadings. The protection extended to a libeled party is broader than that in any other jurisdiction. The only limitation is termination of the suit containing the libel, and this requirement only prevails when the injured person is also a party to the suit. Monier v. Fontenot, 165 So. 481 (La.App. 1 Cir. 1936); Lescale v. Joseph Schwartz Co., 116 La. 293, 40 So. 708 (1906). A party to a suit can insist that it be brought to trial, move for summary judgment or otherwise protect himself against delay. It is only when the complainant is a party to the proceeding and has “. . . a voice in bringing it to its termination,” that a defamation action must await that termination. Monier v. Fontenot, 165 So. 481 at 483.

Viera erred not in allowing the demand by reconvention but in allowing it at all prior to termination of the suit. The purpose of requiring an end to the initial litigation is obvious. A trier of fact who is trying to resolve conflicting claims should not have the further burden of deciding at the same time whether defamation is involved in the pleadings of one party or the other.

Those who labor daily in the law often do not realize the impact of a suit on the average layman. John Citizen when named a defendant usually reacts with a desire to sue for the insult. However, by the conclusion of trial, his temper has generally cooled and he is happy to be free of the court system. Encouraging a countersuit for defamation in each and every lawsuit discourages legitimate claims and burdens the courts unnecessarily.

Corporate plaintiff Union alleged fraud by Powell. If, as alleged, Walters is responsible, he is liable even though the allegation issued in the name of Union. Walters cannot use the corporation as a vehicle for irresponsible libel and shield himself behind the corporation identity. A charge of fraud is, of course, defamatory. Sabine Tram Co. v. Jurgens, 143 La. 1092, 79 So. 872 (1918). Such an allegation in a lawsuit is justified if true and material to the suit. LSA-R.S. 13:3602; LSA-C.C.P. art. 856. If material but false, the party responsible must have a reasonable belief in the truth of the statement and probable cause for making it. Whether this charge of fraud is true or has a reasonable basis will probably be revealed at trial. If, as alleged by Powell, the charges by Union are actionable, his cause of action will arise after trial on the merits. It is now premature; Powell has no cause of action at this time.

I respectfully concur.

       Lemmon, J., recused; Chief Judge Paul B. Landry, Retired, participated in this decision as an Associate Justice Ad Hoc.

      . C.Civ.P. art. 1040 provides:
      “Unless the context clearly indicates otherwise, wherever the words ‘plaintiff’ and ‘defendant’ are used in this Code, they respectively include a plaintiff and a defendant in an incidental demand.”
      C.Civ.P. art. 462 provides:
      “A plaintiff may cumulate against the same defendant two or more actions even though based on different grounds, if:
      (1) Each of the actions cumulated is within the jurisdiction of the court and is brought in the proper venue; and
      (2) All of the actions cumulated are mutually consistent and employ the same form of procedure.
      Except as otherwise provided in Article 3657, inconsistent or mutually exclusive actions may be cumulated in the same judicial demand if pleaded in the alternative.”

      . C.Civ.P. art. 465 provides:
      “When the court is of the opinion that it would simplify the proceeding, would permit a more orderly disposition of the case, or would otherwise be in the interest of justice, at any time prior to trial, it may order a separate trial of cumulated actions, even if the cumulation is proper.”

      . An absolute privilege does attach to the testimony of witnesses in Louisiana by statute. LSA-R.S. 14:50(2).

      . The Viera rule has been approved on the ground that an action for legal defamation, as opposed to one for malicious prosecution, need not await termination of the suit containing the damage. See 36 La.Law Rev. 820. The article errs in stating:
      “The integrity of the judicial privilege is not threatened by the Viera approach because material allegations may still be made without fear of liability.” 36 La.Law Rev. 826.
      The Louisiana rule is that allegations must be not only material but also true, or made in good faith, to avoid liability. The author confuses the common law privilege for all material allegations with the Louisiana rule.

      . See Prosser Torts 4th Ed. at p. 738 which notes that when actions for defamation moved from the ecclesiastical courts to those of the common law, “.. . an unexpected flood of actions was let loose upon the judges ... In this respect, human nature appears immutable.


text:
    STATE of Louisiana ex rel. Edward ADAMS aka Edward Bledsoe v. Honorable Frank J. SHEA, Judge, Criminal District Court, Parish of Orleans.
    No. 80-K-1457.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Edward Adams aka Edward Bled-soe, applying for writ of mandamus. Parish of Orleans. No. 250-426.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Andrew Peter BROWN, III v. STATE of Louisiana.
    No. 67830.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Andrew Peter Brown, III, applying for writs of certiorari, mandamus, and prohibition. Parish of Orleans. No. 268-493.

Writ denied.


text:
    STATE of Louisiana v. Jerry B. PITTMAN.
    No. 80-K-2400.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Jerry B. Pittman, applying for writs of mandamus, certiorari and supervisory. Parish of Iberville. No. 2896-80.

Granted.


text:
    STATE of Louisiana v. Elena M. RODRIGUEZ.
    No. 80-K-2190.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Elena M. Rodriguez, applying for writs of certiorari, prohibition, and mandamus. Parish' of Jefferson. Nos. 80-1287 and 80-1288.

Granted.


text:
    INTERNATIONAL MATEX TANK TERMINALS v. SYSTEM FUELS, INC.
    No. 80-C-1927.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re System Fuels, Inc., applying for remedial writ or writ of certiorari or review. Parish of St. Charles. No. 21892.

Granted.


text:
    Mose LATTIN v. The HICA CORPORATION.
    No. 80-C-1574.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re The Hica Corporation, applying for certiorari to the Court of Appeal, Second Circuit. Parish of Caddo. No. 14122.

Granted.


text:
    STATE of Louisiana v. Jack E. DAVIS.
    No. 80-K-1532.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Jack E. Davis, applying for writs of certiorari, prohibition and mandamus. Parish of Ouachita. No. 43221.

Denied.


text:
    STATE of Louisiana ex rel. Curtis Lee SULLIVAN v. STATE of Louisiana.
    No. 80-KH-2506.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Curtis Lee Sullivan, applying for motion for reduction of bail (remedial writ). Parish of Bossier.

Denied.


author:
DIXON, C. J.,
      CALOGERO, J.,

text:
    Garrison MOREAU v. Nancy Moreau MOREAU.
    No. 80-C-2526.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Nancy Moreau Moreau, applying for stay of action. Parish of Rapides. No. 114592.

Denied; adequate remedy by appeal.

DIXON, C. J.,

would order the Court of Appeal to entertain the application and decide it expeditiously. She does not seek to “interfere” with the trial court’s proceedings, but seeks an expedited review.

CALOGERO, J.,

would order trial court judgment stayed pending appeal or Court of Appeal review of the ruling below.


text:
    STATE of Louisiana v. Carroll Louis BRAZZEL.
    No. 80-K-2466.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Carroll Louis Brazzel, applying for writs of certiorari, prohibition and mandamus. Parish of Caddo. No. 113989.

Denied.


text:
    Carlo GOVERNALE v. OMNI FOODS, INC., Omni Capital Worldwide, Ltd., Richard Friedberg and Michael Stern.
    No. 80-C-2451.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Carlo Governale, applying for writ of certiorari and stay order. Parish of Jefferson. No. 235-358.

Denied.

MARCUS, J., would grant the writ.


text:
    STATE of Louisiana v. George GRIFFON.
    No. 80-K-2441.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re George Griffon, applying for writs of mandamus and certiorari. Parish of East Baton Rouge. No. 1-80-868.

Denied.


text:
    STATE of Louisiana ex rel. Alfred READO, Jr. v. Judge Arthur J. PLANCHARD.
    No. 80-K-2418.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Alfred Reado, Jr., applying for writs of certiorari, prohibition and mandamus. Parish of Calcasieu. No. 12697-79.

Denied.


text:
    STATE of Louisiana in the Interest of Troy DENT.
    No. 80-K-2417.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re The State of Louisiana, applying for writs of certiorari, prohibition, and mandamus. Parish of Jefferson. Juvenile Court. No. 52963-F.

Denied; no ruling of trial court for review.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana v. Richard SHELTON.
    No. 80-K-2399.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Richard Shelton, applying for writs of certiorari, prohibition and mandamus. Parish of Livingston. No. 3214.

Denied. Adequate remedy by review in event of conviction.


text:
    STATE of Louisiana ex rel. Bobby R. SHELTON v. Sheriff Laymon GODWIN.
    No. 80-K-2303.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Bobby R. Shelton, applying for writs of certiorari, prohibition, and mandamus. Parish of Ouachita. Nos. 39380 and 39381.

Denied.


text:
    STATE of Louisiana ex rel. Dwight EVERETT v. STATE of Louisiana.
    No. 80-KH-2292.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Dwight Everett, applying for supervisory and remedial writs. Parish of Orleans. No. 269-883.

Denied.


text:
    STATE of Louisiana v. Henry HINTON, Jr.
    No. 80-K-2284.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Henry Hinton, Jr., applying for writ of certiorari and review. Parish of Caddo. No. 114359.

Denied.


text:
    STATE of Louisiana ex rel. Calvin B. DUNNS v. Honorable Edwin LOMBARD, Clerk of Court, Orleans Parish.
    No. 80-KH-2217.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Calvin B. Dunns, applying for writ of mandamus. Parish of Orleans. No. 267-273.

Denied.


text:
    Edgar W. JOHNSON v. AETNA CASUALTY & SURETY COMPANY et al. Jessie Mae JOHNSON v. AETNA CASUALTY & SURETY COMPANY et al.
    No. 80-C-2207.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Edgar W. Johnson and Jessie Mae Johnson, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Nos. 13403 and 13404. Parish of Tan-gipahoa.

Writ denied.


text:
    STATE of Louisiana v. Frederick D. GRAY.
    No. 80-K-2167.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Frederick D. Gray, applying for writ of certiorari. Parish of Caddo. No. 111677.

Denied.


text:
    STATE of Louisiana v. Tim LEDOUX.
    No. 80-K-2164.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Tim LeDoux, applying for writs of mandamus, certiorari, and review. Parish of East Baton Rouge. No. 4-80-626.

Denied.


text:
    STATE of Louisiana v. George JACKSON.
    No. 80-K-2149.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re George Jackson, applying for writs of certiorari, prohibition, and mandamus. Parish of Orleans. No. 276-763.

Denied.


text:
    STATE of Louisiana v. Marshall E. BATES.
    No. 80-K-2134.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Marshall E. Bates, applying for writs of certiorari, prohibition, and mandamus. Parish of Jefferson. No. 80-1599.

Writ denied. Adequate remedy by review in event of conviction.


text:
    STATE of Louisiana ex rel. Stanislaus ROBERTS v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2128.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Stanislaus Roberts, applying for writ of certiorari. Parish of Calcasieu. No. 4479-74.

Denied.


text:
    STATE of Louisiana ex rel. Woodrow BARKSDALE, II v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2126.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Woodrow Barksdale, II, applying for writs of habeas corpus, certiorari, prohibition, mandamus. Parish of Orleans. No. 254-966.

Denied.


text:
    STATE of Louisiana ex rel. Charles BYRD v. Judge Rudolph BECKER, III, Orleans Criminal District Court.
    No. 80-KH-1952.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Charles Byrd, applying for writ of mandamus. Parish of Orleans. No. 268-880.

Denied; moot.


text:
    STATE of Louisiana ex rel. William GLOVER v. Honorable Frank SHEA, Judge, Criminal District Court, Section G, Parish of Orleans.
    No. 80-KH-1945.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re William Glover, applying for writ of mandamus. Parish of Orleans.

Denied; moot.


text:
    STATE of Louisiana ex rel. Thomas J. PIERCE v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 80-KH-1910.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Thomas J. Pierce, applying for writ of mandamus. Parish of Orleans. No. 263-653.

Writ denied. Moot.


text:
    STATE of Louisiana ex rel. Robert D. DEAN v. Charles C. FOTI, Jr., Criminal Sheriff.
    No. 80-KH-1885.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Robert D. Dean, applying for writ of habeas corpus. Parish of Orleans. No. 271-085.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Lester SCOTT v. Frank BLACKBURN, Warden, Louisiana State Penitentiary et al.
    No. 80-KH-1819.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Lester Scott, applying for writ of mandamus and for Trial Transcript. Parish of Webster. No. 46020.

Denied.


text:
    STATE of Louisiana ex rel. Alphonse BAZILE v. Judge Charles R. WARD.
    No. 80-KH-1783.
    Supreme Court of Louisiana.
    Oct. 31, 1980.
   In re Alphonse Bazile, applying for writ of mandamus. Parish of Orleans. No. 253-642.

Writ denied. Moot.