author: ORFINGER, Chief Judge. COWART, Judge,

text:
    In re The Marriage of Lynn Earl LYNCH, Appellant, v. Rhonda Kay LYNCH, Appellee.
    No. 82-777.
    District Court of Appeal of Florida, Fifth District.
    Sept. 15, 1983.

      Allan C. Draves, Orlando, for appellant.
    Johnie A. McLeod of McLeod, McLeod & McLeod, Apopka, for appellee.
   ORFINGER, Chief Judge.

This appeal from a judgment of dissolution of marriage challenges the award to the wife, as lump sum alimony, of the husband’s interest in the marital home of the parties. We reverse the judgment as it pertains to that award.

The parties were married in August, 1976, and lived together for five years before the dissolution action was filed by the husband. No children were born of the marriage. Both parties were in their early thirties at the time of the dissolution proceedings and both were employed. The husband is a self-employed auto body repairman and the wife is a registered radiological technician. The record reflects that they each earn approximately $250 per week.

Other than the marital home and its furnishings, the only other assets of the parties consisted of a 1980 280Z Datsun automobile, a 1977 Pontiac TransAm automobile and a 1978 Suzuki motorcycle. The final judgment awarded the Datsun 280Z to the wife and the Pontiac TransAm and Suzuki motorcycle to the husband. Additionally, the husband’s interest in the marital home and furnishings was awarded to the wife as lump sum alimony. Only that portion of the judgment awarding to the wife the husband’s interest in the marital home is questioned on this appeal.

This court has previously held, and we again hold that there are two types of lump sum alimony:

The first type relates to support and occurs where the court finds from circumstances sufficient need on the part of one spouse and sufficient ability to pay on the part of the other spouse to warrant permanent alimony and also further finds that unusual circumstances exist justifying the determination that the alimony should be in the form of a lump sum award rather than being paid periodically. The second type, or use of, lump sum alimony relates to making an equitable division of marital property, (emphasis supplied).

Gorman v. Gorman, 400 So.2d 75, 78 (Fla. 5th DCA 1981).

In Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), the supreme court approved the use of lump sum alimony to ensure an equitable distribution of property acquired during the marriage. It held that:

A judge may award lump sum alimony to ensure an equitable distribution of property acquired during the marriage, provided the evidence reflects (1) a justification for such lump sum payment and (2) financial ability of the other spouse to make such payments without substantially endangering his or her economic status.

382 So.2d at 1201.

Because the trial court here did not indicate the basis on which the lump sum award was made, we have examined the record to determine if it can be supported either as support alimony or as an equitable distribution of property.

Prior to Canakaris, other courts agreed that need was a necessary ingredient to an award of lump sum (support) alimony. Martin v. Martin, 376 So.2d 400 (Fla. 1st DCA 1979); Simpson v. Simpson, 372 So.2d 526 (Fla. 4th DCA 1979). Although the fourth district appears to now believe that Canakaris has done away with any requirement to show need, and that only a showing of “justification” is required, Tronconi v. Tronconi, 425 So.2d 547 (Fla. 4th DCA 1982), we believe that Canakaris does not support that view when lump sum alimony is awarded for support purposes. In Canakaris, the court discussed the effect of Yandell v. Yandell, 39 So.2d 554 (Fla.1949), on the issues before it, and said:

“Yandell clearly does not limit the use of lump sum alimony to instances of support or vested property interests.” (emphasis supplied).

382 So.2d at 1201.

We thus read Canakaris as confirming the two-fold use of lump sum alimony — for support, when a need and a concomitant ability is shown, and as a tool for equitably dividing marital property when justification is shown, as well as a concomitant ability to comply.

In Claughton v. Claughton, 393 So.2d 1061 (Fla.1980), the issue before the court was whether the trial court, in its judgment of dissolution, could reserve jurisdiction to determine issues relating to alimony and property rights and thereafter make an award of alimony to the wife after she has remarried. The court said:

The district court’s conclusion was correct insofar as it involved any alimony necessary for the support of the wife. Certainly, temporary alimony payments which had been established by previous court order were terminated by the remarriage. Also barred is any facet of periodic or lump sum alimony which is predicated on the need to support the wife. Carlton v. Carlton, 87 Fla. 460, 100 So. 745 (1924).
We find, however, that remarriage of the wife does not bar consideration of lump sum alimony to the extent it is used to provide the wife with an equitable share of the assets of the parties accumulated during their marriage, as distinguished from her need for support. In Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), we cited Yandell v. Yandell, 39 So.2d 554, 556 (Fla.1949), as approving lump sum alimony where the wife had “assisted her husband in accumulating property....” We do not determine in the instant case that the wife is necessarily entitled to any lump sum alimony; rather, we hold only that the trial judge in the instant case has jurisdiction to award such lump sum alimony if it is found necessary to “compensate the wife for her contribution to the marriage” in accordance with the standards set forth in Canakaris v. Canakaris; see Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974). We emphasize that any award made in this instance would be based on her equitable share of the assets resulting from her marital contribution rather than her need for support, (emphasis supplied).

393 So.2d at 1062.

We find nothing in Canakaris that purports to abolish the use of lump sum alimony for support purposes. See section 61.08, Florida Statutes (1981). Rather, as reinforced by Claughton, the Canakaris court was clarifying earlier confusion in the definition and application of the term “special equity” as it had been used in conjunction with lump sum alimony awards. Cana-karis and Claughton support our view that lump sum alimony, under appropriate circumstances, is still a viable tool for support purposes, in addition to which it may also be used as a vehicle by which one spouse may be awarded an equitable share of the assets of the marriage resulting from his or her marital contribution.

Using the criteria set forth in section 61.08, Florida Statutes (1981), to determine whether the trial court properly awarded the lump sum alimony award, it is important for the court to consider all relevant economic factors. The marriage lasted only five years and the financial resources of the parties are, at this point, virtually the same. With or without her husband’s support, the wife appears capable of maintaining the standard of living established during the marriage. Moreover, while the wife has suffered some health problems, they have not been serious enough to impair her earning ability, as evidenced by the fact that she has not missed a day of work without pay, so her health is an insufficient basis for support-type alimony. Further, the husband’s job changes over the past few years is a factor of little significance to the wife’s showing of need. Both parties are in their early thirties and contributed equally to the marriage and maintenance of the home. As a result, the wife, at least economically, has not adequately shown need for support, so the award cannot be sustained on that basis.

A trial court may award property as lump sum alimony to ensure an equitable distribution of property acquired during the marriage provided the evidence reflects (1) a justification for such award and (2) financial ability of the other spouse to make such payment without substantially endangering his or her economic status. Canakaris, 382 So.2d at 1201. In Gorman, the trial court had awarded the marital home to the wife as lump sum alimony. It was, as in the instant case, the only asset of value accumulated during the marriage, and as a result, this court held:

... where, as here, the home is substantially the only asset of value accumulated during the marriage, there are no special equities and no necessity for a lump sum alimony award for support purposes, and the home is jointly owned, there is no necessity for the application of equitable remedy of lump sum alimony in order to make an equitable and just distribution of the home. That result is achieved by the property law concepts embodied in section 689.15, Florida Statutes, which provides “in cases of estates by the entirety, the tenants, upon dissolution of marriage, shall become tenants in common.” Gorman [400 So.2d] at 79; Bullard v. Bullard, 413 So.2d 1238, 1239 (Fla. 3d DCA 1982).

In Gallagher v. Gallagher, 399 So.2d 75 (Fla. 5th DCA 1981), this court stated in reiteration of Canakaris, supra, that

A trial judge should ensure that neither spouse automatically passes from misfortune to prosperity or from prosperity to misfortune, nor in the totality of circumstances should one spouse be “shortchanged.” Gallagher at 77.

Clearly, appellant has been “shortchanged” here.

Because the trial court did not apply the correct rule of law in making the award of lump sum alimony in that there is no showing of need for support nor any justification for depriving appellant of his only substantial asset, we reverse the final judgment insofar as it awards appellant’s interest in the marital home to appellee, and remand the cause for further proceedings consistent herewith.

REVERSED and REMANDED.

COBB, J., concurs.

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially:

I fully concur in Judge Orfinger’s opinion. However, compare, and also see the cases cited in the dissent in Sanders v. Sanders, 435 So.2d 372 (Fla. 5th DCA 1983).

      . § 61.08 provides in part:
      (2) In determining a proper award of alimony or maintenance, the court shall consider all relevant economic factors, including but not limited to:
      (a) The standard of living established during the marriage.
      (b) The duration of the marriage.
      (c) The age and the physical and emotional condition of both parties.
      (d) The financial resources of each party.
      (e) Where applicable, the time necessary for either party to acquire sufficient education or training to enable him or her to find appropriate employment.
      (f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education and career building of the other party.
      The court may consider any other factor necessary to do equity and justice between the parties.


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    Glen L. VENUTI, Appellant, v. STATE of Florida, Appellee.
    No. 82-865.
    District Court of Appeal of Florida, Fifth District.
    Sept. 15, 1983.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Judge.

In this case the trial court, in imposing a three year sentence for the offense of possession of burglary tools, pronounced that the sentence was to be served concurrently with a prior sentence that appellant had received in Orange County. This intended provision, however, was not incorporated in the written judgment and sentence. The State concedes that oral pronouncements of sentence generally are controlling in such situations and that apparently a clerical error occurred in the instant case. See Landry v. State, 414 So.2d 1086 (Fla. 5th DCA 1982) and Pelfrey v. State, 409 So.2d 486 (Fla. 5th DCA 1982). The appellant’s remaining point on appeal is without merit.

The judgment below is affirmed and the cause is remanded for correction of the written sentence.

AFFIRMED AND REMANDED.

FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.


text:
    Clarence J. SUGGS, et ux., Appellants, v. Tim COWART d/b/a Tim Cowart and Associates, Appellee.
    No. 82-1067.
    District Court of Appeal of Florida, Fifth District.
    Sept. 15, 1983.
    William 0. Birchfield and Stephen H. Durant of Martin, Ade, Birchfield & Johnson, for appellants.
    James G. Sisco, St. Augustine, for appel-lee.
   ORFINGER, Chief Judge.

The issue before us in this appeal from a non-final order denying appellant’s motion for change of venue, is the determination of proper venue when each of two parties has filed a separate action against the other in different counties, both actions arising out of the same transaction or occurrence. We reverse the order denying the change of venue.

Appellants (the owners) owned certain real property in St. Johns County, which they listed for sale with appellee (the broker). The broker produced a purchaser who entered into a contract with the owners to purchase the subject property, and when the owners refused to close, the purchasers brought an action for specific performance and ultimately secured a judgment requiring the owners to convey. This final judgment was not appealed, and the owners performed. The broker was not a party to that action, but the owners had alleged as a defense that the contract for sale and purchase had been procured “as a result of fraud and misrepresentation in that [the broker], with fraudulent intent, represented to ...” the owners certain facts alleged not to be true.

On June 3, 1982, the broker filed the instant action in St. Johns County to recover his brokerage commission on the sale mentioned above. Before any service of process in the St. Johns action, the owners, who reside in Duval County, filed an action for damages in Duval County against the broker, alleging that the broker fraudulently induced them to execute the sales contract with respect to who would be responsible for the sales commission and with regard to other aspects of the proposed transaction, as a result of which, the owners allege, they were compelled to sell their home for less than it was worth. They further allege that if the broker was their agent, he breached his duty to them in inducing them to sign a contract which required them to pay a real estate commission while representing to them that the buyer would pay it.

In the Duval County action, service of process was perfected on June 8, 1982, at 11:35 o’clock A.M. In the St. Johns County action, service of process was perfected on June 8, 1982, at 7:55 o’clock P.M. Thus, although the St. Johns County action was filed first, process was first perfected in the Duval County action. The St. Johns County action involves only a claim for the brokerage commission. The Duval County action seeks damages from the broker, but additionally, seeks a determination that the owners are not liable for the real estate commission, and thus the entitlement by the broker to his commission is inextricably involved in the Duval County action as well.

More than a question of venue is involved. We are really dealing with the question of which court, the Duval County Circuit Court or the St. Johns County Circuit Court, has jurisdiction of the parties and of this controversy. A similar question was reviewed and decided by the supreme court in Martinez v. Martinez, 153 Fla. 753, 15 So.2d 842 (1943). In that domestic relations dispute, the wife had first filed an action in Polk County for separate maintenance and custody of the children. The husband later filed an action in Pinellas County for divorce and custody of the children. Service was perfected first in the husband’s suit in Pinellas County, and although clearly the issues were broader in that action than in the action for separate maintenance, the supreme court adopted the view that in case of conflict between courts of concurrent jurisdiction, the one first exercising jurisdiction acquires control to the exclusion of the other, and that jurisdiction attaches when the summons is served. Thus, it was held by the Martinez court that the Pinellas County Circuit Court had acquired jurisdiction of the controversy, although it was filed later in time.

In Hunt v. Ganaway, 180 So.2d 495 (Fla. 1st DCA 1965), the district court of appeal held that Martinez had been superseded by the 1956 revision of Article V of the Florida Constitution and Rule 1.2 of the Florida Rules of Civil Procedure (see Rule 1.050 of the current rules) which provided, in essence, that civil suits were deemed commenced when filed. Thus, reasoned the Hunt court, the court in which an action was first filed acquired jurisdiction notwithstanding that service of process was first perfected in the competing action in another court.

In Mabie v. Garden Stredt Management Corporation, 397 So.2d 920 (Fla.1981), the supreme court settled the apparent conflict between Hunt and Martinez, holding:

When two actions between the same parties are pending in different circuits, jurisdiction lies in the circuit where service of process is first perfected. Martinez v. Martinez, 153 Fla. 753, 15 So.2d 842 (1943). The First District Court of Appeal, finding that a later rule change overruled Martinez, held that the suit filed first prevails. Hunt v. Ganaway, 180 So.2d 495 (Fla. 1st DCA 1965), cert. denied, 188 So.2d 806 (Fla.1966). Although there is a rational basis for reaching that conclusion, we find that the better policy is to follow Martinez and have the date of service of process govern the jurisdictional conflict presented by this case. We affirm Martinez and disapprove Hunt, (footnotes omitted).

397 So.2d at 921.

Mabie clearly applies here. The interrelationship of the claims would make it compulsory that the owners counterclaim for their damages in the St. Johns action if they are to prevail on their contention that they do not owe a real estate commission, and would require the broker to counterclaim for his broker’s commission in the Duval County action. If two separate actions were maintained, a determination in one action on the issue of fraud in the inducement with respect to the contract for sale and purchase would be res judicata on that issue in the other action.

Thus we have two separate lawsuits, filed in two different places, involving the same parties and revolving about the same set of facts. One lawsuit will resolve all questions arising in this dispute. The parties should not be burdened with the expense of two actions, nor should the courts be burdened with two cases involving the same issues, when one will take care of the problems. Neither should we approve a situation where, as here, each party is motivated to rush to judgment in his action in the hope that a determination of a common issue will be binding in the other suit. Perhaps St. Johns County would be the better place to litigate all the issues, but the supreme court has said that in a situation like this where the parties file separate actions in different counties, the action will be maintained in the county in whose action service of process was first perfected. Mabie v. Garden Street Management Corporation, supra. In this case, that means Duval County, so we reverse, and remand this cause with directions to transfer the action to Duval County.

REVERSED and REMANDED.

SHARP, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

When each of two persons reside in different counties and each files an action against the other in different counties and the claim in each action arises out of the same transaction or occurrence that is the subject matter of the other action, in which county is the proper venue?

Appellants, hereinafter called the owners, are residents of Duval County who owned land in St. Johns County, Florida. Appel-lee, hereinafter called the broker, is a real estate broker and a resident of St. Johns County with his place of business in that county. The owners agreed to pay to the broker in St. Johns County a brokerage commission if the broker procured a buyer for the owners’ land. The broker procured a buyer with whom the owners agreed to sell their land. When the owners refused to close the buyer sued the owners for specific performance and the owners defended alleging fraud in the inducement. A final judgment in favor of the buyers and against the owners was entered in that action.

Thereafter, on June 3, 1982, the broker filed a complaint in St. Johns County against the owners to collect the brokerage commission. Process in this action was served on the owners on June 8, 1982, at 7:55 o’clock p.m. Soon after the filing of the broker’s action for a commission the owners filed a complaint for damages in Duval County against the broker alleging that the broker fraudulently induced the owners to enter into the land sales agreement in question. Although the owners’ fraud action against the broker was filed after the broker’s action was filed against the owners, the complaint in the owners’ fraud action was served on the broker at 11:35 o’clock a.m. on June 8,1982 and thus, before the service of the complaint in the broker’s action against the owners.

The owners, alleging that since their Du-val County fraud action was first served the Duval County circuit court was the proper venue for litigation of both claims, moved in the broker’s action in St. Johns County to have that action dismissed or, in the alternative, to have the St. Johns brokerage action transferred and consolidated with the Duval County fraud action. From the denial of this motion the owners appeal.

The owners argue that the trial court erred in failing to follow Mabie v. Garden Street Management Corporation, 397 So.2d 920 (Fla.1981). In Mabie in substance Ma-bie had an agreement with Rood, a corporation promoter, for stock in the corporation Garden Street. Mabie sued Rood in Escam-bia County but did not perfect service of process. The corporation, Garden Street, then filed an action in Hillsborough County against Mabie and perfected service of process on Mabie. Thereafter Mabie amended his complaint to join Garden Street, an indispensable party, and then Mabie perfected service in his action in Escambia County. Reaffirming Martinez v. Martinez, 153 Fla. 753, 15 So.2d 842 (1943), and disapproving Hunt v. Ganaway, 180 So.2d 495 (Fla. 1st DCA 1965), cert. denied, 188 So.2d 806 (Fla.1966), the supreme court in Mabie held that when two actions between the same parties are properly pending in different circuits, jurisdiction lies not in the county or circuit where the action was first filed but in the circuit wherein the action was filed in which service of process was first perfected.

On first or casual consideration it would appear that Mabie is in point and controls the decision in this case. However, on closer analysis I believe there is a meaningful difference between Mabie and Martinez and this case.

In Mabie the action filed and pending in Escambia County and the action filed and pending in Hillsborough County each involved the same identical question: how much of its stock Garden Street must issue to Mabie under Mabie’s. agreement with Rood. There was but one legal controversy and one answer to that one question would resolve the litigation that had been filed in two different courts. Similarly, in Martinez, a wife first filed a separate maintenance action involving child custody and support in one judicial circuit. Then the husband filed in another judicial circuit a divorce suit seeking custody of the same children. Process was served on the wife in the husband’s suit before process was served on the husband in the wife’s suit. The appellate court considered this to be a conflict in jurisdiction between two courts as to one controversy and held that the question should be resolved on the “lone feature of priority of process” and held that the court in which the husband’s divorce suit was pending had jurisdiction of the one controversy.

This case does not involve a single legal controversy filed in each of two different judicial circuits as was involved in Mabie and Martinez. Here there are two different causes of action and two different controversies. The broker is suing in St. Johns County in contract for services rendered. The owners are suing in Duval County in tort for money damages for fraud. The owners’ action does not even relate to an alleged fraud in the inducement of the brokerage contract but alleges fraud inducing the owners to enter into the agreement to sell their land. While there is a factual relationship between the two pending legal actions each is substantively and legally independent of the other and each can be resolved separately. The St. Johns brokerage action is not even a factor in the Duval County fraud action. If the alleged fraud which is the basis for the Duval County action for damages also constitutes a defense to the St. Johns brokerage action then it can be pleaded as an affirmative defense in that action. Since the adjudication of, or the absence of, fraud on the broker’s part will be res judicata between the parties whether that issue is first adjudicated on the allegations in the owners’ complaint in the Duval County action or on allegations in the owners’ affirmative defense in the St. Johns brokerage action, the one determination will resolve that issue between the parties in both cases. Therefore, in this case there is no potential conflict of jurisdiction between circuit courts in two different judicial circuits as was the potential in Mabie and Martinez.

Other than involving the same parties the legal relationship between the two pending actions in this case is that each may be said to arise factually out of the same transaction or occurrence that is the subject matter of the other action and, therefore, the claim in each action would normally constitute a compulsory counterclaim required to be asserted in the answer of the defendant in each action by Florida Rule of Civil Procedure 1.170(a). However, that rule states as an exception that the pleader need not state a claim as a counterclaim if at the time the action was commenced the claim was the subject of another pending action. Since the owners’ claim now set forth in the Du-val County fraud action was not pending when the broker’s St. Johns County brokerage action was commenced, the owners’ claim is not within the exception but is within the compulsory provisions of the rule and the owners were, and are, required to plead their fraud claim as a compulsory counterclaim in the broker’s St. Johns County brokerage action. However, since the broker’s St. Johns County brokerage action was the subject of another pending action at the time the owners’ Duval County action was commenced, the broker’s claim is within the exception to the compulsory counterclaim rule and the broker is not required to plead his brokerage claim as a compulsory counterclaim in the owners’ Du-val County fraud action.

Accordingly, I would affirm the order denying the owners’ motion to dismiss or to transfer the broker’s St. Johns County brokerage action to Duval County.


author: ORFINGER, Chief Judge.

text:
    Donald F. WRIGHT, David A. Currie, Deborah A. Kirkwood, David A. Johnston, James A. Driver and David T. Harden, Appellants, v. Dr. and Mrs. Louis J. ACIERNO, et al., Appellees.
    No. 82-1392.
    District Court of Appeal of Florida, Fifth District.
    Sept. 15, 1983.

      C. Brent McCaghren of Winderweedle, Haines, Ward & Woodman, P.A., Winter Park, for appellants.
    Clarine F. Smissman of Pino, Knox & Smith, P.A., Orlando, for appellees.
    Claude L. Mullís and Harry Morrison, Jr., Tallahassee, for amicus curiae Florida League of Cities, Inc.
   ORFINGER, Chief Judge.

This appeal is from an order denying appellants (defendants’ below) an award of attorney’s fees under Section 57.105, Florida Statutes (1981), notwithstanding the earlier entry of an order determining that the action against them was frivolous. We reverse.

The action below was filed against the City of Winter Park and its Mayor, City Commissioners and City Manager in their official capacities, to enjoin certain contemplated municipal action and to recover damages. After dismissing the action, the trial court entered an order on June 18, 1982, granting the motion of the individual defendants to award them attorney’s fees under Section 57.105, Florida Statutes (1981) on the ground that the action against them was frivolous. The amount of such fees was not determined at that time.

Subsequent to the entry of the order of June 18, 1982, granting the motion of the individual defendants that they be awarded attorney’s fees, the judge who had entered that order and who had handled all previous matters in the case was appointed to the federal bench, and the hearing to determine the amount of fees to be awarded came on before another judge. At the subsequent hearing, after receiving evidence on the amount of a reasonable fee for representing these defendants, the successor judge entered the order presently appealed from, holding that because the City of Winter Park had provided these officials with counsel and the individual defendants had not paid such attorneys, they were not entitled to an award of attorney’s fees. The Mayor, Commissioners and City Manager appeal the denial of such fees.

In Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980) this court held that an award of fees under Section 57.105 was proper when the trial court found an action to be frivolous, i.e., so clearly devoid of merit both on the law and the facts as to be completely untenable. Such finding is implicit here in the trial court’s order of June 18, 1982, and the correctness of that order has not been properly challenged on appeal.

In approving this court’s interpretation of the statute, the Supreme Court, in Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982) further explains that the purpose of the statute is:

“... to discourage baseless claims, stonewall defenses and sham appeals in civil litigation by placing a price tag through attorney’s fees awards on losing parties who engage in these activities. Such frivolous litigation constitutes a reckless waste of judicial resources as well as the time and the money of prevailing litigants.”

Id. at 505.

The other district courts have not found it necessary that the party seeking an award under this statute first show an expenditure equal to the recovery sought. Thus, in Galbraith v. Inglese, 402 So.2d 574 (Fla. 4th DCA 1981), noting that the legislature had decided to place a price tag on unwarranted and frivolous litigation, the district court reversed an order which had denied an attorney’s fee to a city attorney who had represented himself when sued in his official capacity. In holding that the award of fees was required once the determination had been made that the litigation was frivolous, the court said:

“Moreover, we believe that the Legislature’s choice of the word ‘shall’ in [§ 57.105] ... evidenced a purposeful intent to impose a mandatory requirement to award reasonable attorney’s fees after the court made a factual determination that there was a complete absence of a justiciable issue ... raised by the losing party.”

Id. at 515-516.

Similarly, in City of Boca Raton v. Faith Baptist Church of Boca Raton, Inc., 423 So.2d 1021 (Fla. 4th DCA 1982), the City of Boca Raton was represented by the City Attorney who was paid a salary. Accordingly, the City did not incur any additional expense in defending the lawsuit brought by appellees. As against the argument, accepted by the trial court, that an award of reasonable attorney’s fees to the City would result in a windfall, the district court found that the policies underscoring § 57.-105 outweighed such concern. That court held that the mere fact that the plaintiff was represented by its house counsel who was paid an annual salary did not militate against the allowance of a reasonable attorney’s fee as provided by law.

We agree that the use of the word “shall” in the statute evidences the legislative intention to impose a mandatory penalty in the form of a reasonable attorney’s fee once the determination has been made that there was a complete absence of a justiciable issue raised by the losing party. If we are to implement the legislative intent to discourage baseless claims, stonewall defenses and sham appeals in civil litigation by placing a price tag through attorney’s fees awards on losing parties who engage in these activities, Whitten, supra, the award must be based only on the reasonable value of the services, not on whether or how much the prevailing party has actually paid, or why, in fact, no fee was paid.

Appellees contend that an allowance of fees to the city officials here would inhibit actions by citizens against their public officials when the citizens have a valid cause to pursue in court. Appellees’ logic fails, however, and their fears are misplaced, because it is not the intent of the statute to punish valid causes (or even invalid causes where there is at least an arguable issue). The statute intends only to impose a penalty on those who bring completely frivolous and baseless actions and thereby abuse both their opponents and the judicial system.

It is also argued that the award of fees to the individual defendants grants these defendants a windfall because the City has provided them with counsel under the authority of Section 111.07, Florida Statutes (1981), so that only the City has incurred the costs, not these defendants. The argument fails for several reasons. First, the appellees are not the intended beneficiaries of Section 111.07, which is designed to prevent municipal officers from having to pay the expenses of litigation incurred in the performance of their official duties. Additionally, the policy considerations behind Section 57.105 outweigh such concern, although we find it highly improbable that any honorable or forthright public officer would personally seek a profit from any such award when the cost of his or her defense had been borne by the taxpayers of the agency he or she serves.

The order appealed from is reversed and the cause is remanded with directions to consider the evidence already presented, or such additional evidence as the trial court may deem appropriate, and thereafter to award to appellants a reasonable attorney’s fees for the services rendered in this action on their behalf.

REVERSED and REMANDED with directions.

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

      . The City is not involved in this appeal.


author: PER CURIAM.

text:
    Billy Wayne LADD, Appellant, v. STATE of Florida, Appellee.
    No. 83-61.
    District Court of Appeal of Florida, Fifth District.
    Sept. 15, 1983.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

DISMISSED. See Robinson v. State, 373 So.2d 898 (Fla.1979).

ORFINGER, C.J., and FRANK D. UPCHURCH, Jr., and COWART, JJ., concur.


text:
    Kenneth Ray MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 83-245.
    District Court of Appeal of Florida, Fifth District.
    Sept. 15, 1983.
    James B. GibsonJ Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    ' Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

DISMISSED.

See Fla.R.App.P. 9.140(b)(1).

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


text:
    Robert JOSEPH, Appellant, v. STATE of Florida, Appellee.
    No. 83-533.
    District Court of Appeal of Florida, Fifth District.
    Sept. 15, 1983.

      James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ON MOTION TO DISMISS

ORFINGER, Chief Judge.

The State of Florida has moved to dismiss this appeal for want of jurisdiction, on the ground that appellant’s notice of appeal was not timely filed because appellant’s intervening petition for reconsideration and reduction of sentence did not toll the time of rendition of the judgment and sentence appealed from. We agree, and dismiss the appeal.

Appellant was tried on October 8, 1982, and found guilty. Appellant’s motion for new trial was denied and judgment and sentence were entered on February 2,1983. On February 24, 1983, appellant filed a petition for reconsideration and reduction of sentence pursuant to Florida Rule of Criminal Procedure 3.800. The motion was denied on April 4, 1983, and a notice of appeal directed to the judgment and sentence was filed on April 12,1983. If appellant’s petition for reconsideration and reduction of sentence delayed rendition, the notice of appeal was timely, but if rendition was not thus delayed, the appeal must be dismissed since we would then have no jurisdiction to entertain it. See McAllister v. State, 418 So.2d 1203 (Fla. 5th DCA 1982).

In Guzman v. State, 364 So.2d 523 (Fla. 2d DCA 1978), the court held that a motion for reconsideration of sentence is not one of the motions which tolls the running of the appeal time under Florida Rule of Appellate Procedure 9.020(g). That rule provides:

(g) Rendition (of an order): the filing of a signed, written order with the clerk of the lower tribunal. Where there has been filed in the lower tribunal an authorized and timely motion for new trial or rehearing, to alter or amend, for judgment in accordance with prior motion for directed verdict, notwithstanding verdict, in arrest of judgment, or challenge to the verdict, the order shall not be deemed rendered until disposition thereof.

Appellant contends that the decision in Guzman conflicts with the decision in Strucki v. State, 365 So.2d 222 (Fla. 4th DCA 1978), but a careful review of both cases reveals no conflict. Strucki was decided under Rule 1.3, Florida Appellate Rules (1962 Revision) which provided that rendition of a judgment or order was delayed when any post-trial motion permitted by the rules was filed, until disposition thereof. Since a motion for reduction of sentence is an authorized motion, the timely filing of such motion delayed rendition under old Rule 1.3.

The current rule 9.020(g), Florida Rules of Appellate Procedure, limits the motions which will delay rendition. Because the new rule no longer provides that any petition or motion permitted by the rules will delay rendition, and instead specifically enumerates an exclusive list of such motions which does not include the motion to reduce sentence, such motion does not toll rendition of appellant’s judgment and sentence and the notice of appeal was untimely. See also State v. Holdefer, 386 So.2d 855 (Fla. 2d DCA 1980).

Because we are without jurisdiction, the motion to dismiss the appeal is granted and the appeal is

DISMISSED.

COBB and SHARP, JJ., concur.

      . Committee Notes to Rule 9.020(g) indicate that:
      The term “rendition” has been simplified and unnecessary language deleted ... motions which postpone the date of rendition have now been narrowly limited to prevent deliberate delaying tactics. To postpone rendition, the motion must be timely, authorized and one of those listed, (emphasis supplied).


author: PER CURIAM. BASKIN, Judge

text:
    Sara J. BESLEY, a/k/a Sally Besley, Appellant, v. Edwin D. BESLEY, Appellee.
    No. 82-154.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1983.
    Rehearing Denied Nov. 8, 1983.
    Schwartz, Klein, Steinhardt & Weiss and Norman S. Klein, Miami, for appellant.
    Buchbinder & Elegant and Harris J. Buchbinder, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   ON MOTION FOR REHEARING GRANTED

PER CURIAM.

We withdraw our opinion filed March 1, 1983, and substitute the following in its place.

The final judgment of dissolution is affirmed except for the lump sum alimony award which we reverse and remand with directions to award the wife the husband’s interest in the marital home as lump sum alimony. See Locke v. Locke, 413 So.2d 431 (Fla. 3d DCA 1982); Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1980); Cowan v. Cowan, 389 So.2d 1187 (Fla. 5th DCA 1980), review denied mem., 397 So.2d 777 (Fla.1981); Cuevas v. Cuevas, 381 So.2d 731 (Fla. 3d DCA 1980).

Reversed and remanded with directions.

BASKIN, Judge

(dissenting).

I dissent from the majority opinion because this court, in reversing the trial court’s decision without assigning a reason, has impermissibly designated itself the fact-finder. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Shaw v. Shaw, 334 So.2d 13 (Fla.1976). If this court is inclined to conduct trials de novo, it seems futile to assign any proceedings to the trial court prior to appellate review. In this case, especially, I believe the appellate court overstepped its appropriate role; the litigants did not agree on the facts and it was incumbent upon the trial court, not the appellate court, to resolve disputed issues of fact. The trial court exercised its discretion in conformity with the law and, since no abuse of discretion was demonstrated, its order should be affirmed.

      . In response to the dissent, we do not think that reasonable persons could disagree that under the circumstances of this case the trial court abused its discretion.
      That Mrs. Besley was “shortchanged” is reflected by the record: the trial court’s award to Mrs. Besley of permanent annual alimony of $20,000 measured against Mr. Besley’s annual income of between $45,000 and $65,000, and Mr. Besley’s retention of at least 75% of the marital assets. Mrs. Besley, a wife of 33 years, now 53 years of age and suffering from hypertension, a kidney ailment, severe gout, arthritis and ulcers, has limited prospects in the job market.
      Given a 33-year marriage and the husband’s capacity to earn income coupled with the wife’s acknowledged incapacity, the principles set forth in the cases cited require an award to the wife of substantial compensation for her 33 years of domestic endeavor. See Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974), cert. dismissed mem., 307 So.2d 186 (Fla.1975).


text:
    Rose THALLER, Appellant, v. WATERFORD POINT CONDOMINIUM APARTMENTS, INC., Appellee.
    No. 81-949.
    District Court of Appeal of Florida, Fourth District.
    Sept. 21, 1983.
    Rehearing Denied Oct. 26, 1983.
    Harry G. Carratt of Morgan, Carratt & O’Connor, P.A., Fort Lauderdale, for appellant.
    Mark B. Schorr of Becker, Poliakoff & Streitfeld, P.A., Fort Lauderdale, for appel-lee.
   ON MOTION FOR REVIEW

PER CURIAM.

Appellee, Waterford Point Condominium Apartments, Inc., seeks review of this court’s order dated August 25, 1982 granting appellant’s motion for attorney’s fees, pursuant to Rule 9.400(c), Florida Rules of Appellate Procedure. Appellee also seeks review of the trial court’s order assessing attorney’s fees and taxing costs. We have jurisdiction. See, State v. LoChiatto, 381 So.2d 245 (Fla. 4th DCA 1979).

Appellee contends that we must consider it as the prevailing party in the underlying appeal and that no basis exists for our award of attorney’s fees to appellant. The appellant sought reversal of the trial court’s final judgment of foreclosure of a lien for nonpayment of a special assessment, Thaller v. Waterford Point Condominium Apartments, Inc., 421 So.2d 167 (Fla. 4th DCA 1982). Although she raised numerous points on appeal, we affirmed the trial court on all points with the exception of its computation of the amount of principal and interest due appellee. Although our decision resulted in some economic benefit to the appellant, we must agree with appellee that it was the prevailing party in this appeal.

Therefore, we vacate our previous order dated August 25, 1982 awarding fees to appellant and quash the trial court’s order entered pursuant to our direction on February 8th, 1983 assessing fees and costs in favor of appellant. Our order dated August 25, 1982 denying appellee attorney’s fees on appeal remains unchanged.

DOWNEY and DELL, JJ., and SCHWARTZ, ALAN R., Associate Judge, concur.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Shurbert Charles STIRGUS.
    No. 83-KA-0809.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Kay Kirkpatrick, John Sinque-field, Asst. Dist. Attys., for plaintiff-appellant.
    Alan S. Fishbein, Fishbein & Comeaux, Baton Rouge, for defendant-appellee.
   CALOGERO, Justice.

The trial court’s declaring unconstitutional Act 183 of the 1980 Louisiana Legislature prompts this review on appeal by the state.

Act 183 of 1980 is a local law which in part prohibits excavation of that portion of the bed and banks of the Comité River in East Baton Rouge Parish between Comite Drive and Greenwell Springs Road, which lies within three hundred feet of any state highway or bridge (except with the written approval of the Department of Transportation and Development). The penalty for an unauthorized excavation is a one thousand five hundred dollar fine or not more than fifteen days imprisonment, or both.

The defendant in this case, Shurbert Charles Stirgus, owns and operates a gravel pit near the Comite River in the Parish of East Baton Rouge. He was charged by bill of information with illegal excavation in violation of Act No. 183. In response, he filed a motion to quash, contending that the act in question was unconstitutional. The trial judge granted the motion with written reasons, finding that Act 183 (until passage, House Bill 427) had not been properly advertised before passage, in contravention of 1974 La. Const, art. 3 § 13.

For the reasons which follow, we find that Act 183 is indeed unconstitutional because it was not properly advertised in accordance with La. Const, art. 3 § 13.

As indicated earlier, Act 183 of 1980 is a local law which prohibits certain excavations within a specified area of the Comite River. The Act’s title as it appears in Acts of the State of Louisiana, Yol. I, Regular Session 1980, published by the Secretary of State includes the following recitation:

Notice of intention to introduce this Act has been published as provided by Article III, Section 13 of the Constitution of Louisiana.

La. Const, art. 3 § 13 provides:

No local or special law shall be enacted unless notice of the intent to introduce a bill to enact such a law has been published on two separate days, without cost to the state, in the official journal of the locality where the matter to be affected is situated. The last day of publication shall be at least thirty days prior to introduction of the bill. The notice shall state the substance of the contemplated law, and every such bill shall recite that notice has been given. (Emphasis provided)

On April 3, 1980, and April 4, 1980, the public notice of intention to introduce a local bill to prohibit excavation on a designated section of the Comite River within three hundred feet of a state highway appeared in the State-Times, a daily newspaper of general circulation, and the Official Journal of the State of Louisiana, the City of Baton Rouge and the Parish of East Baton Rouge.

On April 23, 1980, House Bill 427 was introduced. There had not intervened thirty days from the first or second publication date before introduction. The delay between publication and introduction was only nineteen days, rather than the thirty days required under La. Const, art. 3 § 13.

The state does not dispute that there were only nineteen days between second publication and introduction of the bill. Rather they contend that the recital in the preamble to the Act that publication was made in accordance with La. Const, art. 3 § 13 precludes any further inquiry. That argument is not valid for the reasons which follow.

The state relies upon language in an 1895 case of this Court that absent fraud, “no extrinsic proof is admissible for the purpose of contradicting recitals contained in a legislative act.” State v. Murray, 47 La. Ann. 1424 at 1427, 17 So. 832 at 834 (1895). This observation in State v. Murray was merely dicta. The Court ultimately decided that the statute in question (concerning grand jury selection) was not local in nature and so did not come within the requirements for advertisement in advance of the bill’s introduction in the Legislature. Furthermore that Murray language originated in State v. Mason, 43 La. Ann. 590,9 So. 776 (1891) and addressed only whether legislative journals were admissible into evidence when the truth of an entry is questioned.

We have a substantially different situation presented in this case. Act 183 is definitely a local and special law within the constitutional provision requiring notice of intention to pass such a law. City of New Orleans, et al. v. Hon. David C. Treen, Gov. et al., 431 So.2d 390 (La.1983); State v. LaBauve, 359 So.2d 181 (La.1978); State v. Tabor, 189 La. 253, 179 So. 306 (1938); State v. Clement, 188 La. 923, 178 So. 493 (1938). The statement of constitutional compliance in the preamble to Act 183 is a recitation concerning an historical fact. The statement is either true or not. The courts may determine the truth of recited facts contained in a statute which purport to show that it was constitutionally enacted.

While a presumption of regularity is generally accorded legislative proceedings, such presumption is rebuttable. In Hollingsworth v. Thompson, 45 La. Ann. 222, at 232, 12 So. 1 at 4 (1893) we said:

“The unconstitutionality of an act enrolled, authenticated by signatures of the presiding officers, and approved and signed by the governor, must be affirma tively and clearly shown, before the courts are authorized to treat it as void, because not being passed in accordance with the rules of parliamentary law prescribed in the constitution.” Hall v. Steele [82 Ala. 562], 2 So. 650 (Ala.1887). (Emphasis in original)

In this case we have a clear and affirmative showing of a constitutional deficiency in the passage of Act 183. Here there were only nineteen days between the publication of notice in the State-Times and the introduction of House Bill No. 427. Thirty days advance notice is required by La. Const, art. 3 § 13. Local and special legislation which requires advertisement in advance of its introduction in the House or Senate is unconstitutionally enacted if such public notice of intention to introduce the bill is not given.

The trial judge was correct in finding that the enactment process for 1980 La. Act No. 183 did not comply with the constitutional mandate.

Decree

For the foregoing reasons, Act 183 of the 1980 Legislature is unconstitutional. The judgment of the district court to the same effect is affirmed.

AFFIRMED.

      . La. Const, art. 5 § 5(D) provides for direct appeal to this Court if a state law has been declared unconstitutional.

      . 1980 La. Act No. 183 provides in full:
      To prohibit the channelization, channel realignment, reservoir construction and excavation with a dragline, backhoe, caterpillar tractor or by any other means on that portion of the bed and banks of the Comite River in East Baton Rouge Parish between Comite Drive and Greenwell Springs Road which is within three hundred feet of any state highway or bridge without written approved of the Department of Transportation and Development and except as required for construction, maintenance and preservation of state highways by the Department of Transportation and Development and, to provide a penalty of one thousand five hundred dollars fine or not more than fifteen days imprisonment, or both, for violation of this Act, and otherwise to provide with respect thereto.

        Notice of intention to introduce this Act has been published as provided by Article III, Section 13 of the Constitution of Louisiana.

      Be it enacted by the Legislature of Louisiana:
      Section 1, Channelization, channel realignment, reservoir construction and excavation with a dragline, backhoe, caterpillar tractor or by any other means on that portion of the bed and banks of the Comite River in East Baton Rouge Parish between Comite Drive and Greenwell Springs Road which is within three hundred feet of any state highway, or bridge without written approval of the Department of Transportation and Development and except as required for construction, maintenance and preservation of state highways by the Department of Transportation and Development is hereby prohibited.
      Willful violation of any provision of this Act shall be a misdemeanor punishable by a fine of one thousand five hundred dollars or imprisonment for not more than fifteen days, or both.
      Section 2. If any provision or item of this Act or the application thereof is held invalid, such invalidity shall not affect other provisions, items, or applications of this Act which can be given effect without the invalid provisions, items, or applications, and to this end the provisions of this Act are hereby declared. severable.
      Section 3. All laws or parts of laws in conflict herewith are hereby repealed. (Emphasis provided)

      . The notice read:
      Public notice is hereby given, in compliance with Section 13, Article III of the Louisiana Constitution of 1974, that there will be introduced at the forthcoming session of the Legislature of Louisiana, to be convened on April 21, 1980, a bill to prohibit the channelization, channel realignment, reservoir construction, and excavation with a dragline, backhoe, caterpillar tractor, or by any other means on that portion of the bed and banks of the Comite River in East Baton Rouge Parish between Comite Drive and Greenwell Springs Road which is within three hundred feet of any state highway, parish road or bridge. Provides a penalty for violation of five-thousand dollar fine and/or not more than fifteen days imprisonment.

      . As noted in Comment, 41 La.L.Rev. 1187 at 1194 et seq. (1981), judicial inquiry into whether an act meets mandatory constitutional standards differs from a court’s review of whether the legislative body observes its own internal rules of procedure. La. Const, art. 3 § 7. Compare, State v. Gray, 221 La. 868, 60 So.2d 466 (1952); Daigle v. Hess, 270 So.2d 294 (La. App. 1st Cir.1972), writ denied, 272 So.2d 376 (La.1973).

        . Hollingsworth et al v. Thompson, 45 La. Ann 222, 12 So. 1 (1893) concerned a challenge to a tax law. To prove that the law was not properly passed by the Legislature, the plaintiffs introduced portions of the House and Senate Journals.
      The full text of the amendment appeared in the Senate Journal for June 23, but was not included in the House Journal of June 28. The Court applied the presumption of regularity of legislative proceedings and found that the omission did not invalidate the law because there was no constitutional or statutory requirement that an amendment be printed in the journals.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Craig Patrick SMITH.
    No. 82-KA-1527.
    Supreme Court of Louisiana.
    Sept. 2, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., James Alcock, Asst. Dist. Atty., for plaintiff-appellee.
    John Wilson Reed, Glass & Reed, New Orleans, for defendant-appellant.
   MARCUS, Justice.

Craig Patrick Smith was indicted by the grand jury for the second degree murder of Rick Brian Whitener in violation of La.R.S. 14:30.1. After trial by jury, he was found guilty of manslaughter and sentenced to serve twenty-one years at hard labor. On appeal, defendant relies on four assignments of error for reversal of his conviction and sentence.

FACTS

On July 22, 1981, defendant drove Carey Smith (his brother), Jessie Trevathan and Michael Detiveaux to Rick Whitener’s trailer. The alleged purpose of the visit was to beat up Whitener for “messing with” or “seeing” Carey’s estranged wife. They arrived at the trailer site at about 8:30 p.m. whereupon Trevathan went into the trailer. The only person there was Whitener’s roommate, George Cunningham, who told Trevathan that Whitener had not yet returned from work. Trevathan left. Defendant then drove the three other men around for a while.

According to the testimony of Cunningham, the following events then transpired. At 9:00 p.m., he heard a knock at the door and when he opened it, Trevathan was pointing a .25 caliber pistol at him. Defendant and Carey came into the trailer each armed with a club. While Trevathan guarded Cunningham with the gun, defendant and Carey checked out the rest of the trailer. Thereafter, Carey cut the telephone cord while defendant held the telephone receiver with his shirt. Defendant then tied Cunningham’s hands behind his back with an extension cord. At about 9:30 p.m., the men heard Whitener’s car pull up. Defendant, Carey and Trevathan hid and when Whitener walked in, they ran out and grabbed him. Cunningham gave conflicting testimony as to who actually tied up Whitener. At the trial, he stated that defendant acted alone but at a prior hearing he indicated that it was both defendant and Carey. In any event, defendant at least participated in tying up Whitener’s hand with a cord which also ran around his neck. The two captives were then put into the car and defendant drove. Detiveaux had left the group before Whitener arrived because he was afraid Trevathan’s gun would go off. After about 20-25 minutes, defendant stopped the car and Cunningham was released.

According to the testimony of defendant, he drove for a few more minutes and stopped the car whereupon Carey, Treva-than and Whitener got out. Defendant saw Carey hit Whitener a few times with a club and then Trevathan punched him a few times. Defendant then walked over and hit Whitener (who was still tied up) a few times with his fist. Defendant then walked away but heard a “bunch of shots” as he left. He turned around and saw Trevathan standing over Whitener with the gun. He then got into the car and started the engine. He saw Carey and Trevathan each grab Whitener by a leg and pull him away. About five minutes later, they returned and said “Let’s go.” On the way back home, they stopped for a beer. One week later, Whitener’s body was recovered from Bayou Blue. Cause of death was “multiple gunshot wounds of the head.”

Michael Detiveaux, a friend of defendant, also testified. He claimed that defendant did not go into the trailer until after Cunningham was tied up. However, defense counsel admitted in closing argument that “Detiveaux is not completely clear on what happened that night. Michael Detiveaux ... had no recollection that there was initially a visit to the trailer that resulted in nothing happening [the visit at 8:30 p.m.].”

ASSIGNMENTS OF ERROR NOS. 1 AND 2

Defendant contends the trial judge erred in denying his requests to order a disclosure or, in the alternative, to conduct an in camera inspection of prior statements of state witnesses, Cunningham and Detiveaux.

Upon completion of the direct examination of Cunningham and then again at the end of Detiveaux’s direct examination, defendant requested a disclosure or an in camera inspection of all written statements, grand jury testimony, and any other information by a state agency that revealed any inconsistencies or contradicted the direct examination of the two witnesses. As to Cunningham, defendant focused on the statements concerning who tied up Whitener and Cunningham. There was no such specificity with regard to Detiveaux’s testimony. The trial judge denied defendant’s request on each occasion.

The United States Supreme Court held in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that upon request the state must produce evidence that is favorable to the accused where it is material to guilt or punishment. The Brady rule has been expanded to include evidence which impeaches the testimony of a witness where the reliability or credibility of that witness may be determinative of guilt or innocence. A finding of materiality of the evidence is required under Brady. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); State v. Peters, 406 So.2d 189 (La.1981). In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Supreme Court stated:

In Brady the request was specific. It gave the prosecutor notice of exactly what the defense desired. Although there is, of course, no duty to provide defense counsel with unlimited discovery of everything known by the prosecutor, if the subject matter of such a request is material, or indeed if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge. When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable.

At the material witness hearing conducted on December 2, 1981, Cunningham testified that defendant was the one who tied his hands and that both defendant and Carey tied up Whitener. At trial on February 9, 1982, Cunningham testified that defendant had tied up both Whitener and himself. Hence, the only discrepancy between his trial and prior testimony was that earlier he had stated both defendant and Carey had tied up Whitener while at trial he testified that it was only defendant. Whether defendant tied up Whitener alone or did it with Carey is not material to his guilt of or punishment for second degree murder, particularly in light of the other evidence relating to his involvement in the crime. In any event, defendant, referring to the transcript of the material witness hearing, effectively impeached Cunningham on this point. In addition, defendant impeached his credibility by a prior conviction for grand theft in Ohio.

As to Detiveaux, defendant asked for all prior statements, grand jury testimony, or any other information obtained by a state agency which was inconsistent with his testimony. Considering that Detiveaux left the trailer before Whitener arrived, it could hardly be said that his testimony could be material to defendant’s guilt or punishment. Additionally, this request was not specific. In Agurs, the Supreme Court stated that a Brady request must be specific and material. Rather, this was a general request for all prior inconsistent statements. As noted in Agurs, there is “no duty to provide defense counsel with unlimited discovery of everything known by the prosecutor.”

In sum, the trial judge did not err in denying defendant’s requests to order a disclosure or to conduct an in camera inspection of prior statements of Cunningham and Detiveaux.

Assignments of Error Nos. 1 and 2 are without merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 4

Defendant contends the trial judge erred in failing to comply with the sentencing guidelines set forth in La.Code Crim.P. art. 894.1 and in imposing an excessive sentence.

La. Const, art. 1, § 20 prohibits the imposition by law of excessive punishment. Accordingly, we have held that imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional rights against excessive punishment that is enforceable by this court on appellate review. The trial judge’s reasons in imposing sentence, as required by La.Code Crim.P. art. 894.1, are an important aid to this court when called upon to exercise its constitutional function to review a sentence complained of as excessive. Moreover, the trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Washington, 414 So.2d 313 (La.1982).

Defendant was sentenced to twenty-one years at hard labor, the maximum penalty for manslaughter. In written reasons filed in the record at the time of sentencing, the trial judge noted that defendant admitted his participation in the kidnapping of decedent and hitting him with his fist prior to being shot by a fellow conspirator. In finding that there’ was a “considerable risk that if this young man is returned to the streets without incarceration on a long term basis he will be involved in some other criminal activity” and that a less than maximum sentence would deprecate the seriousness of the crime, the trial judge stated:

Certainly any person seeing as Craig did the brutal beating of the decedent by hitting him 10 or more times with an ax handle, the decedent being tied up at all times and then with his fists hitting the decedent knocking him to the ground bespeaks of a hardened brutal person.

While the trial judge did not completely comply with La.Code Crim.P. art. 894.1, the record fully supports the sentence imposed; hence, a remand is unnecessary. State v. Boatright, 406 So.2d 163 (La.1981). Defendant was at least an active participant in the murder of Whitener. He drove the car to Whitener’s trailer. Subsequently, he entered the trailer with a club. He assisted his brother in the search of the trailer and in cutting the telephone cord. He then tied Cunningham’s hands behind his back. When Whitener arrived, he along with Carey and Trevathan hid and then grabbed Whitener. Defendant either tied up Whitener alone or with his brother. He then drove the two captives (Cunningham and Whitener) to an isolated area. Even according to his own testimony, after watching Carey hit Whitener with a club and Trevathan punch him, he walked over and hit Whitener (who was still tied up) several times with his fist. Under these facts alone, we are unable to say the trial judge abused his discretion in imposing the maximum penalty for the offense for which defendant was convicted (manslaughter). Hence, we do not find defendant’s sentence excessive.

Assignments of Error Nos. 3 and 4 are without merit.

DECREE

For the reasons assigned, defendant’s conviction and sentence are affirmed.

LEMMON, J., concurs in the result.


author: MARCUS, Justice. DIXON, Chief Justice

text:
    STATE of Louisiana v. Kem WEST.
    No. 82-KA-1655.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William E. Til-ley, Dist. Atty., Edwin L. Cabra, Asst. Dist. Atty., for plaintiff-appellee.
    Louis J. Cosenza, Leesville, for defendant-appellant.
   MARCUS, Justice.

Kem West was indicted by the grand jury for second degree murder of William James Calcóte in violation of La.R.S. 14:30.1. Af-

ter trial by jury, defendant was found guilty as charged and sentenced to life imprisonment without benefit of parole, probation, or suspension of sentence. On appeal, he relies on nine assignments of error for reversal of his conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 1, 2,

3, 4, 5, 14, .AND 15

In these assignments of error, defendant contends the trial judge erred in sustaining the state’s objection to the introduction of prior contradictory statements made by a state witness to four defense witnesses based on the grounds of hearsay and that he had not laid a proper foundation for introduction of these statements on cross-examination, in ruling that this same witness was not hostile when called by him and in not allowing him to impeach the witness by his prior contradictory statements, in denying his proffer of the testimony of these four witnesses, and in not postponing the imposition of sentence to give defendant additional time to further brief these issues in support of his motion for a new trial.

At trial, the state called David Wayne Hart as a witness. Hart, pursuant to a plea bargain in which he agreed to testify in this case, had pled guilty to manslaughter of William “Billy” Calcóte, the same victim for which defendant was being prosecuted, and had been sentenced to serve five years at hard labor. At the time of trial, he had served two years of the sentence and had been released from custody. On direct examination, Hart apparently testified that defendant had committed the murder and that he (Hart) had taken no part in the actual killing of the victim. Hart was extensively cross-examined by defendant. During cross-examination, the following colloquy took place:

Q. Did you ever tell anyone that you’d killed him [Calcóte]?
A. No sir.
Q. You never told anyone that you killed him?
A. No sir.
Q. Did you ever meet a man named Charles Carstarphsen?
A. Yes sir.
Q. Did you ever tell Charles Carstar-phsen that you had murdered Billy Cal-cóte?
A. No sir.
Q. Did you ever meet a man named Ronnie Brogden while you were in jail?
A. Yes sir.
Q. Did you ever tell Ronnie Brogden that you had murdered Billy Calcóte?
A. No sir.
Q. You met a man named David Cryer when you were in jail?
A. No sir.
Q. Then I must assume that you never told him ...
A. Right.
Q. ... that you had murdered Billy Cal-cóte?
A. Yes sir.
Q. Did you know a man in jail named Joel Vernon?
A. Yes sir.

The following day after the state had rested, defendant called Hart as his first witness. Hart was asked: “Did you ever tell Joel Vernon that you had killed .... ” At this point, the state objected on the ground that this was a leading question. Defendant argued that the witness by his previous testimony demonstrated his hostility under La.R.S. 15:487. The trial judge ruled that Hart was now defendant’s witness and that a proper showing of hostility had not been made. Hart was further examined by defendant:

Q. Did you kill Billy Calcóte?
A. No sir.
Q. Who killed Billy Calcóte?
A. Mr. West.

Defendant then argued that this testimony, in itself, demonstrated Hart’s hostility and he should be allowed to impeach his credibility through the use of prior contradictory statements. The trial judge ruled that “it may be that you can show hostility, or it may be that hostility will be shown ... but to this moment, you have not shown hostility within the requirement of the law.” Defendant asked no further questions of Hart and dismissed him as a witness.

Thereafter, defendant called the following witnesses: Joel Vernon, convicted of second degree murder and serving a life sentence; Ronald Brodgen, convicted of second degree murder and serving a life sentence; Charles Carstarphsen, convicted of armed robbery and serving twenty-five years; and David Cryer, convicted of burglary and theft and serving about seventeen months for the two convictions. Each of these witnesses testified, over the state’s objection, that Hart had told them that he (Hart) had killed Billy Calcóte. The state objected to any further testimony by these witnesses relative to what Hart may have told them on the ground that since defendant had not laid a proper foundation during the cross-examination of Hart under La. R.S. 15:493 or made a proper showing of hostility when he called Hart as his own witness, such statements would be inadmissible hearsay. The objection was sustained by the trial judge. However, Vernon was permitted to testify that Hart told him, “Mr. West and the female remained in the automobile.” Carstarphsen also testified that Hart said that, “he killed the guy. That Kem West didn’t kill him.”

As defendant admits in his brief to this court, the statements he sought to introduce in evidence were clearly hearsay. However, he argues that the United States Supreme Court in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), authorized the introduction of such hearsay testimony if the testimony “bore persuasive assurances of trustworthiness.” We need not decide whether Chambers mandates the introduction of such statements as we do not find that the hearsay testimony defendant sought to introduce met the standard set forth in Chambers. In the instant case, unlike Chambers, the persons to whom Hart made the statements were not life-long friends nor were such statements made shortly after the murder occurred. Rather, the statements were made to persons who had committed serious crimes while Hart was in jail. Further, the statements were not made immediately but long after the commission of the crime. Hence, the trial judge did not err in ruling that the statements were inadmissible hearsay.

However, these statements could have been introduced to impeach the credibility of Hart. La.R.S. 15:493 permits the credibility of a witness to be impeached by proof of any statement made contrary to his testimony at trial. This statute provides:

Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be called to the time, place and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have an opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible.

Under this statute, proof that the prior inconsistent statement was made can be used for impeachment purposes only, not to show the truth of its content. State v. Mosley, 360 So.2d 844 (La.1978). The requirement of this statute that a defendant must lay a proper foundation for the admission of a prior contradictory statement has been strictly applied. See, e.g., State v. Heard, 408 So.2d 1247 (La.1982); State v. LaFleur, 398 So.2d 1074 (La.1981). The rationale for such a strict construction is to obviate surprise and to let the witness either deny or explain the inconsistency. State v. Heard, supra.

In the instant case, defendant did not lay the foundation required under La. R.S. 15:493 for the admission of prior contradictory statements during his cross-examination of Hart. He did not call Hart’s attention to the time, place or circumstances of the alleged statements made to the four witnesses in connection with the statement made by Hart that he murdered the victim and nothing at all was asked as to whether Hart told these witnesses that defendant did not participate in the commission of the crime. Hence, although the trial judge was lenient in permitting these witnesses to testify that Hart had told them that he murdered the victim, he did not err in limiting the use of prior contradictory statements to this question.

Nor do we consider that defendant was improperly precluded from making a showing of hostility when he called Hart as his own witness. Once a witness has been examined and cross-examined as a state witness, the right of the defendant to recall the witness in the presentation of his defense is subject to the limitation that the recall places the witness in the position as though he had never been called before in the case. He then becomes a defense witness. State v. Guillory, 373 So.2d 133 (La.1979).

La.R.S. 15:487 provides:
No one can impeach his own witness, unless he have been taken by surprise by the testimony of such witness, or unless the witness show hostility toward him, and, even then, the impeachment must be limited to evidence of prior contradictory statements. (Emphasis added.)

Although hostility is not defined by this statute, this court has suggested that hostility turns on a showing that the witness’ interest is on the side of the opposite party to such an extent that he or she is unlikely to give a true account of the transaction. State v. Welch, 368 So.2d 965 (La.1979); State v. Willis, 241 La. 796, 131 So.2d 792 (1961). Hostility has also been shown where the witness gives evasive and contradictory answers. State v. Edwards, 419 So.2d 881 (La.1982); State v. Bradford, 367 So.2d 745 (La.1978).

In the instant case, Hart merely testified that he had not killed Billy Calcóte and that defendant did. There was no showing that Hart’s interest was on the side of the state to such an extent that he was unlikely to give a true account of the events which led to the commission of the crime. To the contrary, Hart’s plea bargain was conditioned on his agreement to testify truthfully in this case. In addition, at the time of the trial, he had served two years of his sentence and had been released from custody. Nor were his answers evasive or contradictory. Defendant was not precluded by the trial judge’s ruling from further establishing Hart’s hostility. He voluntarily chose to curtail this line of questioning. Hence, we do not find that the trial judge erred in finding that defendant had not established that Hart was hostile and in refusing to permit defendant to impeach his own witness through the use of prior contradictory statements.

In any event, as previously noted, each of the four defense witnesses did testify that Hart told them that he (Hart) had murdered the victim. In addition, Vernon was permitted to testify that Hart told him defendant and the female had remained in the automobile during the murder. Moreover, the jury was aware that Hart had pled guilty to the manslaughter of the same victim for which defendant was being prosecuted and that as a condition of his plea bargain he had agreed to testify in this case. Hence, it is doubtful that the testimony of the four defense witnesses, all of whom had been convicted of serious crimes for which they were serving long prison sentences, that Hart told them about defendant’s role in the murder would not have added much to that which the jury already knew. This is particularly true since the evidence would have been admitted only for the purpose of impeaching Hart and not to show the truth of its content. Under the circumstances, we do not consider the failure to permit introduction of Hart’s alleged prior contradictory statements by these witnesses to be of any particular significance.

Having found that the testimony of the four defense witnesses was inadmissible, we do not find that the trial judge’s denial of defendant’s proffer of this testimony was in error. Nor do we find that the trial judge abused his discretion in denying a postponement of the imposition of sentence to give defendant additional time to further brief these issues in support of his motion for a new trial. La.Code Crim.P. art. 853.

Assignments of Error Nos. 1, 2, 3, 4, 5,14 and 15 are without merit.

We find that neither of the remaining assignments of error presents reversible error, nor do they involve legal issues not governed by clearly established principles of law. They will be treated in an appendix which will not be published but which will comprise part of the record in this case.

DECREE

For the reasons assigned, defendant’s conviction and sentence are affirmed.

CALOGERO, J., concurs.

DIXON, C.J., concurs with reasons.

DENNIS, J., concurs for reasons assigned by Dixon, C.J.

LEMMON, J., dissents.

DIXON, Chief Justice

(concurring).

I respectfully disagree with the majority in its treatment of the prior inconsistent statements. Confessions are admissible. The state’s witnesses were hostile. Defendant should be permitted to cross-examine state’s witnesses either during the state’s case in chief, or the defense’s case.

Nevertheless, the errors appear to be harmless; therefore I concur.

      . Defendant was originally indicted by the grand jury for first degree murder. Subsequently, a new indictment was returned by the grand jury charging defendant with second degree murder. The first indictment was dismissed. After a trial by jury, he was found guilty as charged and was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On appeal, this court reversed his conviction and set aside his sentence on the ground that a statement made by defendant to the police and introduced at trial was given in violation of his constitutional rights to silence and counsel. State v. West, 408 So.2d 1114 (La.1982).

      . Defendant designated fifteen errors to be urged on appeal in his assignment of errors filed in the district court. However, he has neither briefed nor argued Assignments of Error Nos. 7, 9, 10, 11, and 12; therefore we consider them to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . Defendant has only designated those portions of the record for review by this court which relate to his assignments of error filed in the district court. Hence, we do not have the benefit of the testimony of David Wayne Hart on direct examination by the state.

      . We find the case of Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), relied on by defendant in support of this argument, is clearly distinguishable from the instant case. In Chambers, the court concluded “that the exclusion of this critical evidence [the statement of a person named McDonald that he had murdered the victim] coupled with the State’s refusal to permit Chambers to cross-examine McDonald, denied him a trial in accord with traditional and fundamental standards of due process. In reaching this judgment, we establish no new principies of constitutional law. Nor does our holding signal any dimunition in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial and procedures.” (Emphasis added.) In the instant case, defendant was permitted to cross-examine Hart and Hart’s statements that he had killed Billy Calcóte were presented to the jury.


text:
    SUCCESSION OF Donald Everett BOYENGA.
    No. 83-C-0355.
    Supreme Court of Louisiana.
    Sept. 2, 1983.

      William G. Nader, Samuel P. Love, Jr., Love, Rigby, Dehan, Love & McDaniel, Shreveport, for applicant.
    C. Vernon Richie, Richie & Richie, Shreveport, for respondents.
   MARCUS, Justice.

On December 1,1978, Dr. Donald Everett Boyenga executed his last will and testament in statutory form. The will was prepared by and executed before Samuel P. Love, Jr., an attorney and notary public. In the will, Dr. Boyenga named his wife, Dorothy Boyenga, as the executrix and designated Mr. Love as the attorney to represent his estate. Mr. Love was paid a fee of $100 for services performed.

On January 5, 1982, Dr. Boyenga, accompanied by his wife and Mrs. Ruby D. Koy, a neighbor, met with Mr. John A. Richie, an attorney, at Mr. Richie’s office for the purpose of preparing a new will and to adopt his wife’s son by a prior marriage. Both Mrs. Boyenga and Mrs. Koy testified that Dr. Boyenga wanted to remove Mr. Love as the attorney designated in his will. Elaine Robe, a secretary for Mr. Richie, testified that Dr. Boyenga told her that he was changing attorneys because he was dissatisfied with his old one (Mr. Love). The meeting with Mr. Richie lasted from 11:00 a.m. to 1:30 p.m., during which time Dr. Boyen-ga expressed his desire to have Mr. Richie serve as the attorney to represent his estate. However, due to the paper work involved in connection with the adoption, the will was not executed at that time. Dr. Boyenga was supposed to return to Mr. Richie’s office in a couple of days to execute the new will. However, at 3:00 p.m. (some ninety minutes later), Dr. Boyenga died of a heart attack at his home. On January 19, 1982, Mr. Richie, on behalf of Mrs. Boyenga, wrote a letter to Mr. Love asking him to renounce any right that he may have to serve as the attorney for Dr. Boyenga’s succession. Mr. Love refused.

Thereafter, Mrs. Boyenga petitioned the trial court for the probate and execution of the December 1, 1978 testament and to be confirmed as the testamentary executrix. Pursuant to a request included in the petition, the court ordered Mr. Love to appear and show cause why he should not be removed as the attorney for the succession. Mr. Love filed an answer and asserted by way of reconvention that Mrs. Boyenga was not entitled to the relief sought but in the event that he was removed as the attorney for the succession, he would be entitled to compensation in the amount of 2½% of the gross assets of the estate. A rule was accordingly issued requiring Mrs. Boyenga to show cause why Mr. Love should not be ^warded a sum equal to 2½% of the gross value of the succession as compensation. Both rules were set and heard on the same day. Subsequently, the trial judge rendered “judgment on rules to show cause” in which he ruled in favor of Mrs. Boyenga and against Mr, Love on her rule removing Mr. Love as the attorney for the succession and in favor of Mr. Love on his rule awarding him an attorney’s fee of 2½% of the gross assets of the succession. Mrs. Boyen-ga appealed. Mr. Love did not appeal nor answer the appeal. The court of appeal reversed that portion of the trial court’s judgment awarding Mr. Love an attorney’s fee. On application of Mr. Love, we granted certiorari to review the correctness of that decision.

At the outset, we note that the portion of the judgment of the trial court rendered in favor of Mrs. Boyenga removing Mr. Love as the attorney for the succession is not before this court. The court of appeal reached a similar conclusion, that is, it was not before their court. The record reveals that Mr. Love was willing to serve as the attorney for the succession. However, Mrs. Boyenga filed a rule to remove him as the designated attorney. The trial court rendered judgment in favor of Mrs. Boyenga and against Mr. Love on this rule. Mr. Love did not appeal. Mrs. Boyenga appealed from the adverse judgment on Mr. Love’s rule awarding him an attorney’s fee. Mr. Love did not answer this appeal. Therefore, we are precluded from reviewing the portion of the trial court’s judgment removing Mr. Love as attorney because that portion of the judgment is final and definitive.

As a result, we cannot consider the question which was first presented to this court in Rivet v. Battistella, 167 La. 766, 120 So. 289 (1929); whether a designation of an attorney in a will is valid and binding on those who take under the will. In Rivet, the testator named an executor and an attorney (Mr. Rivet) in his will to settle his estate. Upon the testator’s death, Mr. Rivet tendered his services to the executor, widow and heirs. These services were refused and the executor employed other attorneys who settled the estate without calling on Mr. Rivet to render any services in connection therewith. Thereafter, Mr. Rivet sued the widow and heirs to recover from them the amount of fees that he would have earned had he been employed. This court held in favor of Mr. Rivet and awarded him a fee of 2lh% of the assets shown on the inventory. In reaching this result, the Rivet court answered the above question in the affirmative: a designation of an attorney in a will is valid and binding on those who take under the will. Subsequent decisions by this court have followed this holding. However, in the instant case, because Mr. Love has been removed as the attorney by a final and definitive judgment, we cannot consider the question as presented in Rivet and its progeny.

Thus, the narrow issue presented for our determination is whether a designated attorney in a will is entitled to a fee which he has not earned.

The record does not support, nor does Mr. Love contend, that he earned a fee from the time of the preparation of the will (for which he was paid $100) to the time of the hearing. In fact, Mr. Love did not render any services in connection with the will and/or succession during that time. Yet, the trial court awarded Mr. Love an attorney’s fee of 2¾⅞% of the gross assets of the succession. The court of appeal held that such an award constituted an unearned fee clearly prohibited by the law of this state. We agree.

This court has a duty to assert the authority conferred on it by our state constitution to regulate the practice of law. This court’s prevailing judicial authority resulted in the adoption and promulgation of the Articles of Incorporation of the Louisiana State Bar Association, which Articles came to incorporate the Code of Professional Responsibility. The Code of Professional Responsibility which regulates attorneys’ practices has been recognized as having the force and effect of substantive law. Leenerts Farm, Inc. v. Rogers, 421 So.2d 216 (La.1982); Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La.1979).

The Code of Professional Responsibility, DR 2-106, Fees for Legal Services, provides in pertinent part:

(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.

In addition, DR 2-110(A)(3) provides:

A lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned.

We view the Code of Professional Responsibility as being the most exacting of laws established for the public good. Leenerts Farm, Inc. v. Rogers, supra. Hence, a designated attorney in a will is not entitled to an unearned fee. Clearly, Mr. Love did not earn any fee. Accordingly, we affirm the judgment of the court of appeal.

DECREE

For the reasons assigned, the judgment of the court of appeal is affirmed.

CALOGERO, J., concurs.

DIXON, C.J., dissents with reasons.

DIXON, Chief Justice

(dissenting).

Mr. Love was entitled under existing law to serve as attorney for the succession. He was prevented from performing by the actions of the executrix. He should, not be denied a fee unless he was not entitled to the bequest. That question is, therefore, before us.

      . Prior to the hearing, by agreement of the parties, the will was probated and Mrs. Boyen-ga was confirmed as testamentary executrix.

      . 424 So.2d 414 (La.App.2d Cir.1982).

      . 430 So.2d 81 (La.1983).

      . Succession of Feitel, 187 La. 596, 175 So. 72 (1937); Succession of Rembert, 199 La. 743, 7 So.2d 40 (1942); Succession of Bush, 223 La. 1008, 67 So.2d 573 (1953); Succession of Pope, 230 La. 1049, 89 So.2d 894 (1956); Succession of Falgout, 279 So.2d 679 (La.1973).

      .For a comprehensive discussion of the issue, see Comment, Testamentary Designation of Probate Counsel, 51 Tul.L.Rev. 334 (1977).