Viator v. Miller

Decision Date27 April 2005
Docket NumberNo. 2004-1199.,2004-1199.
Citation900 So.2d 1135
PartiesMichael Joseph VIATOR v. Wendell R. MILLER.
CourtLouisiana Supreme Court

J. Ogden Middleton, II, Alexandria, LA, for Plaintiff/Appellant, Michael Joseph Viator.

M. Allyn Stroud, Wiener, Weiss & Madison, Shreveport, LA, for Defendant/Appellee, Wendell R. Miller.

Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS and J. DAVID PAINTER, Judges.

COOKS, Judge.

Plaintiff, Michael Viator, appeals the trial court's ruling granting, in part, defendant, Wendell Miller's, exception of no cause of action based on the doctrine of judicial immunity. Defendant answered the appeal and argues the trial court erred in failing to dismiss Viator's action in its entirety.


In December of 1992, Heather Viator became Wendell Miller's secretary in his private law practice. Heather was married at that time to Michael Viator. At some point in 1993, Heather and Miller became involved in a sexual relationship. After the sexual relationship between Miller and Heather began, and while still married to Michael, Heather became pregnant. A baby boy, A.V., was born on September 1, 1994. The baby's conception date occurred between November and December of 1993.

Miller became city court judge in Jennings in December of 1993. He worked two days a week as City Court Judge, and continued to work in private practice for three days a week. Heather continued to work as Judge Miller's secretary, and their affair continued as well. In 1996, the Viators were having marital problems and were contemplating divorce. Michael alleged Judge Miller advised Heather she and her husband could continue to live under the same roof for the 180-day separate-and-apart period required by La.Civ Code art. 102, as long as they did not engage in sexual relations. This advice was communicated to Michael by Heather, and they relied on it and lived in the same house for the 180-day period.1 In October of 1996, Heather, represented by counsel, filed a petition for divorce in the Thirty-First Judicial District Court, Heather Lynn Chisolm Viator v. Michael Joseph Viator, No. C-963-96. Although Heather was represented by counsel, Michael alleged Judge Miller assisted in the preparation of the divorce petition. In 1996, Judge Miller was elected as a district judge on the Thirty-First Judicial District Court and assumed the bench on January 1, 1997. He retained Heather as his personal secretary.

On May 16, 1997, Heather filed a rule directing Michael to show cause why a judgment of divorce should not be granted. Michael alleged Judge Miller assisted Heather in drafting, editing and finalizing that rule. On May 20, 1997, Judge Miller presided over the "Rule to Show Cause" hearing and subsequently issued a divorce judgment pursuant to La.Civ.Code art. 102. According to plaintiff, Judge Miller did this despite the failure of the parties to live separate and apart in different dwellings. Joint custody of A.V. was granted and Michael was ordered to pay child support. According to Michael, neither he, his wife nor any legal representative of either was present at the "Rule to Show Cause" hearing. He alleges only a court reporter and bailiff were present, but minutes were created which reflected that a hearing took place.

On November 11, 2002, Judge Miller contacted Michael by phone. In the ensuing conversation, Judge Miller confessed to the ten-year sexual relationship he had with Heather. Judge Miller also told Michael he believed he was the biological father of A.V., and demanded that Michael consent to a voluntary DNA test of the minor child. Michael refused. According to Michael, he asked Judge Miller if he realized he had presided over his divorce while he was sleeping with his wife. Judge Miller responded, "[I]f you want to challenge that then you go right ahead." Judge Miller eventually filed a paternity action

Michael filed suit against Judge Miller, individually and in his capacity as a Judge, to have the May 20, 1997 judgment of divorce declared absolutely null and to assert a claim for damages. Michael's claim for damages was based upon theories of bad faith, detrimental reliance, intentional infliction of emotional distress, and general Louisiana tort law. As the suit was filed in the Thirty-First Judicial District Court, Judge Miller issued an order recusing himself. Judge Miller was the only district judge on the Thirty-First JDC. The Louisiana Supreme Court subsequently appointed a judge ad hoc to preside over the action.

Judge Miller filed a peremptory exception of no cause of action asserting that the doctrine of judicial immunity insulated him from any civil action by Michael to recover damages for the conduct alleged and to declare the May 20, 1997 divorce judgment a nullity. The trial court subsequently granted the exception of no cause of action dismissing Michael's action to annul the divorce judgment and to recover damages for any alleged acts or omissions from the time Judge Miller took the bench as a city court judge up to the present time, with the following exceptions:

The trial court denied the exception (1) as to any claim plaintiff might have against the defendant for intentional infliction of emotional distress based on a phone conversation that occurred between plaintiff and defendant on November 11, 2002; and (2) any claim plaintiff may have against defendant for "civil fraud" prior to the time defendant became a City Court Judge.

At Michael's request, the district judge certified the order as a final judgment, and this appeal followed. Michael argues it was "reversible legal error to grant defendant's peremptory exception of no cause of action and grant defendant protection under the judicial immunity doctrine for all acts/omissions from when defendant became city court judge through his tenure as district court judge." His brief also questions whether "the trial court [was] correct in ruling that the appellant had no cause of action to seek a judgment declaring the May 20, 1997 divorce judgment null and void."

Defendant answered the appeal and argues the trial court erred by failing to dismiss Michael's action in its entirety, because all claims asserted against Judge Miller during the performance of his judicial duties are barred by the doctrine of judicial immunity and all the remaining allegations referring to acts performed outside of his judicial duties do not state a cause of action against him under Louisiana law.

A. Nullity Action

Michael's petition contains numerous allegations attacking the validity of the divorce judgment, including references to Judge Miller failing to recuse himself, granting the judgment of divorce despite the failure of the parties to live in separate dwellings, and holding the divorce hearing when none of the parties or their legal representatives were present. However, there is no allegation in the petition that Michael did not desire to obtain a divorce or that he opposed the divorce proceedings in any way. Thus, on the face of the petition the divorce was consensual and entered into with Michael's full knowledge. Further La.Code Civ.P. art. 2004(B)provides:

B. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.

There can be no question that Michael was aware of the grounds which he contends amounted to fraud or ill practices at the time the divorce was granted. Thus, he did not timely seek annulment of the divorce judgment. The lapse of the one-year peremptive period, which extinguishes the cause of action, may be noticed by this court, on its own motion. La.Code Civ.P. art. 927(B). Further, the fact that Judge Miller may have violated the judicial canons that control his professional behavior as a member of the judiciary did not create an independent basis for nullity of the judgment of divorce at issue. See Guidry v. First Nat'l Bank of Commerce, 98-2383 (La.App. 4 Cir. 3/1/00), 755 So.2d 1033, 1036, writ denied, 00-920 (La.5/26/00), 762 So.2d 1106, where the appellate court affirmed the trial court's conclusion that "although a violation of the Judicial Code would justify disciplinary action by the Supreme Court, there was nothing in the law suggesting that a judge's failure to recuse would be grounds to nullify a judgment."

B. Judicial Immunity

The appellate court in McCoy v. City of Monroe, 32,521, pp. 7-8 (La.App. 2 Cir. 12/8/99), 747 So.2d 1234, 1241, writ denied 00-1280 (La.5/30/01), 788 So.2d 441, discussed the doctrine of judicial immunity:

In Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988), the United States Supreme Court recognized the long history of judicial immunity and its importance in protecting judges from vexatious actions prosecuted by disgruntled litigants. The judge is entitled to absolute immunity where he performs "judicial" acts. Moore v. Taylor, 541 So.2d 378 (La.App. 2d Cir. 1989). A judge, of whatever status in the judicial hierarchy, is immune from suit for damages resulting from any act performed in the judicial role. Judges are absolutely immune from 42 U.S.C. § 1983 liability for all acts performed within their subject matter jurisdiction, even if the acts are malicious. This immunity extends to justices of the peace as well as those that sit on the supreme court and shields judges unless they act either in "the clear absence of all jurisdiction over subject matter" or in a nonjudicial capacity. Moore v. Taylor, supra.

The Louisiana jurisprudence on judicial immunity mirrors the federal doctrine. A judge may not be cast for damages for his errors unless he has acted outside of his judicial capacity. Moore v. Taylor, supra. Even where the judge has technically acted outside his jurisdiction and contrary to law, he will remain protected, unless his actions were based on malice or corruption. Moore...

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