Conques v. Hardy

Decision Date07 September 1976
Docket NumberNo. 5580,5580
Citation337 So.2d 627
PartiesMr. and Mrs. Carrol CONQUES, Plaintiffs and Appellants, v. John M. HARDY, Defendant and Appellee.
CourtCourt of Appeal of Louisiana — District of US

Walter J. Landry, Lafayette, for plaintiffs and appellants.

J. Burton Willis, St. Martinville, for defendant and appellee.



Plaintiffs seek damages resulting from the issuance of an unlawful warrant for the arrest of their 9 year old son. Defendant is the justice of the peace who issued the warrant. The trial judge rejected plaintiffs' demands. Plaintiffs appealed. Defendant answered the appeal, seeking damages for frivolous appeal.

The decisive issue is whether the defendant is protected by the rule of judicial immunity.

On suggestion of the trial judge, counsel for all parties requested that no written record be made of the evidence introduced at trial. After the appeal, the parties could not agree on a narrative of facts, so the trial judge wrote a narrative, which is conclusive under the provisions of LSA-C.C.P. Article 2131.

The facts disclosed by the trial judge's written narrative of facts are as follows: The actions giving rise to this lawsuit began during a recess at a Breaux Bridge Elementary School. One of a group of boys on the playground tapped or slapped the back of Edward Conques' head. In response, Edward turned and hit Joseph Benoit in the stomach, thinking it was Joseph who had slapped him. A minor scuffle ensued between the two 9 year old boys. They were separated immediately. Neither was injured.

The parents of each child filed an affidavit for the arrest of the other. Edward Conques' father, Carrol, first made a complaint to the defendant that Joseph Benoit had hit his son, Edward, 'in the head with his fist'. Defendant accepted this complaint, with the understanding that Carrol Conques would file an affidavit later to form the basis for a warrant of arrest. Four days later, Conques did file an affidavit against Joseph Benoit, which resulted in Joseph's arrest. Defendant did not even know Mr. Conques before this incident.

After his arrest, Joseph was taken to the parish jail, booked charged and finally released after several hours to the custody of his parents. When Joseph returned home, his father, Harold, asked him how the altercation between him and Edward occurred. Subsequently, Harold Benoit went to defendant, explained the incident again and executed an affidavit that Edward had hit his son, Joseph, 'in the stomach with his fist.' In response to the filing of this affidavit, defendant issued a warrant for the arrest of Edward Conques. A deputy sheriff executed this warrant by taking Edward and his parents to jail where Edward was booked, charged, and released within a half hour to the custody of his parents. The record does not show the nature of the crime with which either boy was charged.

There are minor differences between the fact stated in the trial judge's narrative and the facts developed at a trial of plaintiff's earlier suit against the sheriff of St Martin Parish for damages resulting from the arrest. See Conques v. Fuselier, 327 So.2d 180 (La.App.3rd Cir. 1976). The record of the earlier trial was not introduced into evidence in this case, however, so our review is limited to the trial judge's conclusive narrative of facts.

The alleged tortious conduct in this case is the issuance of an unlawful arrest warrant. LSA-R.S. 14:13 provides that 'Those who have not reached the age of ten years are exempt from criminal responsibility.' Plaintiffs argue their nine year old son was exempt. They also argue that since a justice of the peace has no juvenile jurisdiction, the defendant had no jurisdiction to issue the arrest warrant.

One of the judicial functions of justices of the peace is the issuance of arrest warrants in cases where it is believed that an offense has been committed. LSA-C.Cr.P. Articles 202 and 931. Since the conduct complained of is a judicial function, the doctrine of judicial immunity is relevant. The immunity issue must be decided before we address the merits of plaintiffs' claim.

Plaintiffs argue that defendant cannot now raise a judicial immunity defense because he failed to plead it specially as an affirmative defense in his answer, which was in the form of a general denial. Judicial immunity is not one of the affirmative defenses enumerated in Article 1005 of our Code of Civil Procedure Article 1005. Other affirmative defenses are identified on a case by case basis. Plaintiffs cite no Louisiana cases, and we found none, specifically declaring judicial immunity to be an affirmative defense. Based on the following test, however, we have concluded that judicial immunity is an affirmative defense:

'An affirmative defense raises new matter, which, assuming the allegations of the petition to be true, constitutes a defense to the action and will have the effect of defeating plaintiff's demand on its merits.' Webster v. Rushing, 316 So.2d 111 (La.1975).

In practice, judicial immunity has been pleaded as an affirmative defense. See Bore v. Bush, 6 Mart. (N.S.) 1 (1827); Buque v. Watkins, 1 La. 131 (1830).

If the rule requiring special pleading of affirmative defenses admitted of no exceptions, defendant's failure to plead judicial immunity could prevent our considering the issue. It is now well established, however, that 'notwithstanding LSA-C.C.P. Article 1003 and 1005, pleadings may be enlarged to include an affirmative defense not specifically plead(ed), where evidence supporting such a defense is introduced without objection.' Edwards v. Edwards, 282 So.2d 858 (La.App.1st Cir. 1973), writ refused, 284 So.2d 777 (La.1973); LSA-C.C.P. Article 1154.

We have no written trial record to determine whether evidence supporting the defense of judicial immunity was admitted without objection. However, any doubt that such evidence was admitted is dispelled by the trial judge's written reasons for judgment, which state that the evidence shows defendant is shielded from liability by judicial immunity. In cases where there is no evidence to review, or, similarly, where the judge's written narrative of facts is not specific, the presumption is that the judgment of the trial court is supported by sufficient competent evidence. See Hutcherson v. Welch, 316 So.2d 144 (La.App.1975). For these reasons we find that defendant's answer has been enlarged to include the affirmative defense of judicial immunity.

The rule of pleading affirmative defense especially is designed to give fair notice of the nature of the defense to prevent surprise. As a practical matter, plaintiff had abundant notice of defendant's intent to base his defense on judicial immunity. A pretrial exception of 'No Cause Or Right Of Action', which was pretermitted by the trial judge, alleged judicial immunity.

Having disposed of the procedural point, we now address the merits of the issue of judicial immunity. Plaintiff's principal argument against immunity for Justice of the Peace Hardy is that he was acting beyond his jurisdiction when he issued the warrant of arrest for young Conques. In plaintiff's earlier suit against the sheriff of St. Martin Parish (Conques v. Fuselier, supra), we said: 'Justice of the Peace Hardy improperly issued a warrant for young Conques' arrest without jurisdiction over the minor. . . .' Our authority for this conclusion is LSA-R.S. 13:1569 and 13:1570, which...

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    ...v. Taylor, 541 So.2d 378, 381 (La. App. 2 Cir. 1989) ; Cleveland v. State, 380 So.2d 105 (La. App. 1 Cir. 1979) ; Conques v. Hardy, 337 So.2d 627 (La. App. 3d Cir. 1976) ; Berry v. Bass, 157 La. 81, 102 So. 76 (1924) ; State ex rel. Duffard v. Whitaker, 45 La. Ann. 1299, 14 So. 66 (1893). W......
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